Category: Employment Law Updates 2020

Employment Law Updates: December 2020

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Federal Law Updates: December 2020

Five Federal along with D.C and seven State Law Updates have been issued.  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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December 2020 Law Alert Map

Labor Law Updates for December 2020

1

Pandemic Relief

President Trump signs the 2021 Consolidated Appropriations Act applicable to COVID-19 or another coronavirus with pandemic potential.

On December 27, 2020, President Donald Trump signed the 2021 Consolidated Appropriations Act (US H 133) containing the 2021 Coronavirus Response and Relief Supplemental Appropriations Act applicable to SARS-CoV-2 (COVID-19) or another coronavirus with pandemic potential. Generally, the act:

  • Extends some Coronavirus Aid, Relief, and Economic Security Act (CARES Act) economic assistance. For instance: 
    • Reinstatement of Federal Pandemic Unemployment Compensation (FPUC) in the amount of $300 for weeks of unemployment beginning after December 26, 2020 through March 14, 2021.
    • Extension and modification of temporary Pandemic Unemployment Assistance (PUA) through March 14, 2021 and phasing out on April 5, 2021. The phasing out is for those individuals who remain eligible after March 14, 2021 and have not exhausted their maximum benefits entitlement. However, under the act, no PUA benefits can be paid after April 5.
    • Extension of employee retention tax credit to wages paid before July 1, 2021.
    • Expansion and continuation of the Paycheck Protection Program (PPP).
  • Allows employers to continue taking tax credits for qualifying paid sick and family leave under the Federal Families First Coronavirus Response Act (FFCRA) through March 14, 2021. However, beginning January 1, 2021, employers are not required to provide employees with paid FFCRA leave.

Specific to the FFCRA:

  • Beginning January 1, 2021, employers are not required to provide employees with paid FFCRA leave, which includes both COVID-related emergency paid sick leave (EPSL) and emergency family and medical leave (EFMLA). However, employees may still be entitled to paid sick leave or emergency COVID leave under state or local law.
  • For employers that voluntarily provide paid sick and family and medical leave that would have otherwise qualified as FFCRA leave: 
    • Federal payroll tax credits are extended through March 31, 2021 (if the individual did not exhaust their maximum FFCRA leave allotment and the leave did not expire on December 31, 2020).
    • Employees do not get a new bank of FFCRA hours in 2021 – the amount they have available on January 1, 2021 is how much they can use through March 31, 2021. There is a possible exception if employers use the calendar year or another fixed FMLA tracking period that starts before March 31, 2021.

The IRS and DOL will soon provide more information and detailed guidance on the act’s implementation.

2

IRS Issues 2021 Standard Mileage Rates

The IRS released the 2021 optional standard mileage rates.

On December 22, 2020, the Internal Revenue Service released Notice 2021-02 with the 2021 optional standard mileage rates for taxpayers to use to calculate the deductible costs of operating an automobile for business, charitable, medical, or moving purpose. Beginning on January 1, 2021, the standard mileage rates for the use of a car (also vans, pickups, or panel trucks) will be:

  • 56 cents per mile driven for business use;
  • 16 cents per mile driven for medical, or moving purposes for qualified active duty members of the Armed Forces; and
  • 14 cents per mile driven in service of charitable organizations, which is unchanged from 2020.

The notice also provides that:

  • The maximum standard automobile cost to compute the allowance under a fixed and variable rate plan (FAVR plan) may not exceed $51,100 for automobiles (including trucks and vans)l; and
  • The maximum fair market value of employer-provided automobiles for the fleet-average valuation rule and the vehicle cents-per-mile valuation rule (including trucks and vans) first made available to employees in calendar year 2021 is $51,100.

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3

EEOC COVID-19 Guidance and Vaccines

U.S. EEOC updated its “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws”.

On December 16, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) updated its “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” publication by including:

  • A new section for employers and employees about how a COVID-19 vaccination interacts with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and the Genetic Information Nondiscrimination Act (GINA).
  • Information about medical pre-screening questions and employer accommodations for those unable to receive a vaccination.

These new sections are provided below and are directly from the publication.

ADA and Vaccinations

K.1. For any COVID-19 vaccine that has been approved or authorized by the Food and Drug Administration (FDA), is the administration of a COVID-19 vaccine to an employee by an employer (or by a third party with whom the employer contracts to administer a vaccine) a “medical examination” for purposes of the ADA? (12/16/20)

No.  The vaccination itself is not a medical examination.  As the Commission explained in guidance on disability-related inquiries and medical examinations, a medical examination is “a procedure or test usually given by a health care professional or in a medical setting that seeks information about an individual’s physical or mental impairments or health.”  Examples include “vision tests; blood, urine, and breath analyses; blood pressure screening and cholesterol testing; and diagnostic procedures, such as x-rays, CAT scans, and MRIs.”  If a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination.

Although the administration of a vaccination is not a medical examination, pre-screening vaccination questions may implicate the ADA’s provision on disability-related inquiries, which are inquiries likely to elicit information about a disability.  If the employer administers the vaccine, it must show that such pre-screening questions it asks employees are “job-related and consistent with business necessity.”  

K.2. According to the CDC, health care providers should ask certain questions before administering a vaccine to ensure that there is no medical reason that would prevent the person from receiving the vaccination. If the employer requires an employee to receive the vaccination from the employer (or a third party with whom the employer contracts to administer a vaccine) and asks these screening questions, are these questions subject to the ADA standards for disability-related inquiries? (12/16/20)

Yes. Pre-vaccination medical screening questions are likely to elicit information about a disability. This means that such questions, if asked by the employer or a contractor on the employer’s behalf, are “disability-related” under the ADA. Thus, if the employer requires an employee to receive the vaccination, administered by the employer, the employer must show that these disability-related screening inquiries are “job-related and consistent with business necessity.”  To meet this standard, an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others. 

By contrast, there are two circumstances in which disability-related screening questions can be asked without needing to satisfy the “job-related and consistent with business necessity” requirement. First, if an employer has offered a vaccination to employees on a voluntary basis (i.e. employees choose whether to be vaccinated), the ADA requires that the employee’s decision to answer pre-screening, disability-related questions also must be voluntary. If an employee chooses not to answer these questions, the employer may decline to administer the vaccine but may not retaliate against, intimidate, or threaten the employee for refusing to answer any questions. Second, if an employee receives an employer-required vaccination from a third party that does not have a contract with the employer, such as a pharmacy or other health care provider, the ADA “job-related and consistent with business necessity” restrictions on disability-related inquiries would not apply to the pre-vaccination medical screening questions.  

The ADA requires employers to keep any employee medical information obtained in the course of the vaccination program confidential.

K.3. Is asking or requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry? (12/16/20)

No. There are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related. Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry. However, subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be “job-related and consistent with business necessity.” If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.

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ADA and Title VII Issues Regarding Mandatory Vaccinations

K.4. Where can employers learn more about Emergency Use Authorizations (EUA) of COVID-19 vaccines? (12/16/20)

Some COVID-19 vaccines may only be available to the public for the foreseeable future under EUA granted by the FDA, which is different than approval under FDA vaccine licensure. The FDA has an obligation to:

[E]nsure that recipients of the vaccine under an EUA are informed, to the extent practicable under the applicable circumstances, that FDA has authorized the emergency use of the vaccine, of the known and potential benefits and risks, the extent to which such benefits and risks are unknown, that they have the option to accept or refuse the vaccine, and of any available alternatives to the product.

The FDA says that this information is typically conveyed in a patient fact sheet that is provided at the time of the vaccine administration and that it posts the fact sheets on its website. More information about EUA vaccines is available on the FDA’s EUA page. 

K.5. If an employer requires vaccinations when they are available, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a disability? (12/16/20)

The ADA allows an employer to have a qualification standard that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” However, if a safety-based qualification standard, such as a vaccination requirement, screens out or tends to screen out an individual with a disability, the employer must show that an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” Employers should conduct an individualized assessment of four factors in determining whether a direct threat exists: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm. A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite.  If an employer determines that an individual who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace, or take any other action, unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.

If there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace, but this does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities. For example, if an employer excludes an employee based on an inability to accommodate a request to be exempt from a vaccination requirement, the employee may be entitled to accommodations such as performing the current position remotely. This is the same step that employers take when physically excluding employees from a worksite due to a current COVID-19 diagnosis or symptoms; some workers may be entitled to telework or, if not, may be eligible to take leave under the Families First Coronavirus Response Act, under the FMLA, or under the employer’s policies.

Managers and supervisors responsible for communicating with employees about compliance with the employer’s vaccination requirement should know how to recognize an accommodation request from an employee with a disability and know to whom the request should be referred for consideration. Employers and employees should engage in a flexible, interactive process to identify workplace accommodation options that do not constitute an undue hardship (significant difficulty or expense). This process should include determining whether it is necessary to obtain supporting documentation about the employee’s disability and considering the possible options for accommodation given the nature of the workforce and the employee’s position. The prevalence in the workplace of employees who already have received a COVID-19 vaccination and the amount of contact with others, whose vaccination status could be unknown, may impact the undue hardship consideration. In discussing accommodation requests, employers and employees also may find it helpful to consult the Job Accommodation Network (JAN) website as a resource for different types of accommodations. JAN’s materials specific to COVID-19 are at https://askjan.org/topics/COVID-19.cfm.  

Employers may rely on CDC recommendations when deciding whether an effective accommodation that would not pose an undue hardship is available, but as explained further in Question K.7., there may be situations where an accommodation is not possible. When an employer makes this decision, the facts about particular job duties and workplaces may be relevant. Employers also should consult applicable Occupational Safety and Health Administration standards and guidance. Employers can find OSHA COVID-specific resources at: www.osha.gov/SLTC/covid-19/.

Managers and supervisors are reminded that it is unlawful to disclose that an employee is receiving a reasonable accommodation or retaliate against an employee for requesting an accommodation.

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K.6. If an employer requires vaccinations when they are available, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a sincerely held religious practice or belief? (12/16/20)

Once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccination, the employer must provide a reasonable accommodation for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII of the Civil Rights Act.  Courts have defined “undue hardship” under Title VII as having more than a de minimis cost or burden on the employer. EEOC guidance explains that because the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.  If, however, an employee requests a religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.

K.7. What happens if an employer cannot exempt or provide a reasonable accommodation to an employee who cannot comply with a mandatory vaccine policy because of a disability or sincerely held religious practice or belief? (12/16/20)

If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace.  This does not mean the employer may automatically terminate the worker.  Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.

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Title II of the Genetic Information Nondiscrimination Act and Vaccinations

K.8. Is Title II of GINA implicated when an employer administers a COVID-19 vaccine to employees or requires employees to provide proof that they have received a COVID-19 vaccination? (12/16/20)

No. Administering a COVID-19 vaccination to employees or requiring employees to provide proof that they have received a COVID-19 vaccination does not implicate Title II of GINA because it does not involve the use of genetic information to make employment decisions, or the acquisition or disclosure of “genetic information” as defined by the statute. This includes vaccinations that use messenger RNA (mRNA) technology, which will be discussed more below. As noted in Question K.9. however, if administration of the vaccine requires pre-screening questions that ask about genetic information, the inquiries seeking genetic information, such as family members’ medical histories, may violate GINA.

Under Title II of GINA, employers may not (1) use genetic information to make decisions related to the terms, conditions, and privileges of employment, (2) acquire genetic information except in six narrow circumstances, or (3) disclose genetic information except in six narrow circumstances. 

Certain COVID-19 vaccines use mRNA technology. This raises questions about genetics and, specifically, about whether such vaccines modify a recipient’s genetic makeup and, therefore, whether requiring an employee to get the vaccine as a condition of employment is an unlawful use of genetic information. The CDC has explained that the mRNA COVID-19 vaccines “do not interact with our DNA in any way” and “mRNA never enters the nucleus of the cell, which is where our DNA (genetic material) is kept.” (See https://www.cdc.gov/coronavirus/2019-ncov/vaccines/different-vaccines/mrna.html for a detailed discussion about how mRNA vaccines work).  Thus, requiring employees to get the vaccine, whether it uses mRNA technology or not, does not violate GINA’s prohibitions on using, acquiring, or disclosing genetic information.

K.9. Does asking an employee the pre-vaccination screening questions before administering a COVID-19 vaccine implicate Title II of GINA? (12/16/20)

Pre-vaccination medical screening questions are likely to elicit information about disability, as discussed in Question K.2., and may elicit information about genetic information, such as questions regarding the immune systems of family members.  It is not yet clear what screening checklists for contraindications will be provided with COVID-19 vaccinations.

GINA defines “genetic information” to mean: 

  • Information about an individual’s genetic tests;
  • Information about the genetic tests of a family member;
  • Information about the manifestation of disease or disorder in a family member (i.e., family medical history);
  • Information about requests for, or receipt of, genetic services or the participation in clinical research that includes genetic services by the an individual or a family member of the individual; and
  • Genetic information about a fetus carried by an individual or family member or of an embryo legally held by an individual or family member using assisted reproductive technology.

     

If the pre-vaccination questions do not include any questions about genetic information (including family medical history), then asking them does not implicate GINA. However, if the pre-vaccination questions do include questions about genetic information, then employers who want to ensure that employees have been vaccinated may want to request proof of vaccination instead of administering the vaccine themselves. 

GINA does not prohibit an individual employee’s own health care provider from asking questions about genetic information, but it does prohibit an employer or a doctor working for the employer from asking questions about genetic information. If an employer requires employees to provide proof that they have received a COVID-19 vaccination from their own health care provider, the employer may want to warn the employee not to provide genetic information as part of the proof. As long as this warning is provided, any genetic information the employer receives in response to its request for proof of vaccination will be considered inadvertent and therefore not unlawful under GINA.  See 29 CFR 1635.8(b)(1)(i) for model language that can be used for this warning.

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4

CDC, COVID-19, and Options to Reduce Quarantine

U.S. Centers for Disease Control (CDC) updated its COVID-19 quarantine options by suggesting quarantine periods shorter than 14-days.

On December 2, 2020, the U.S. Centers for Disease Control (CDC) updated its COVID-19 quarantine options by suggesting quarantine periods shorter than 14-days. This is because a 14-day quarantine can impose personal burdens that may affect physical and mental health as well as cause economic hardship that may reduce compliance. Therefore, based on local circumstances and resources, the CDC offers the following options as acceptable alternatives to shorten quarantine:

  • Quarantine can end after ten days without testing and if no symptoms have been reported during daily monitoring.
  • When diagnostic testing resources are sufficient and available, then quarantine can end after seven days if a diagnostic specimen tests negative and if no symptoms were reported during daily monitoring. The specimen may be collected and tested 48 hours before ending quarantine (for instance, in anticipation of testing delays) but quarantine cannot end earlier than after seven days.

5

New Opinion Letters Addressing FLSA

DOL announces new opinion letters addressing compliance related to FLSA.

On November 30, 2020, the U.S. Department of Labor (DOL) released the following new opinion letters addressing Fair Labor Standards Act (FLSA) compliance:

  • FLSA2020-17: Addressing whether an employee’s regular rate of pay, who is paid on a piece-rate basis, may be calculated by dividing total earnings by the number of productive and nonproductive hours worked during the workweek in the absence of a specific agreement with the employee to use such calculation.
  • FLSA2020-18: Addressing whether insect farming qualifies as agriculture under the FLSA and whether certain workers employed by an insect farming operation may be exempt from overtime pay requirements.

An opinion letter is an official, written opinion by the DOL’s Wage and Hour Division (WHD) on how a particular law applies in specific circumstances presented by the person or entity that requested the letter.

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Individual state labor laws

State Specific Labor Law Updates:

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Employment Law Updates: November 2020

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Federal Law Updates: November 2020

Three Federal along with D.C and fourteen State Law Updates have been issued.  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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November 2020 State Law Alerts

Labor Law Updates for November 2020

1

Federal Contractor Minimum Wage Rate for 2021

Increase in minimum wage rates effective January 1, 2021.

Effective January 1, 2021, the applicable minimum wage rate for workers performing work on or in connection with federal contracts covered by Executive Order 13658 increases to $10.95 per hour. Additionally, the required minimum cash wage for tipped employees performing work on or in connection with covered contracts increases to $7.65 per hour.

2

Form I-9 Flexibility Extended to December 31, 2020

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

On November 18, 2020, the U.S. Immigration and Customs Enforcement (ICE) announced another extension to the Employment Eligibility Verification (Form I-9) flexibility rule, which was extended to December 31, 2020, because of COVID-19 and the need for precautions. This flexibility rule, applicable only to remote workplaces, defers the physical presence requirement for in-person verification of the Form I-9 identity and employment eligibility documentation. However, the flexibility rule does not apply if there are employees physically present at the workplace. If there are employees physically present, then an employer must verify their Form I-9 identity and employment eligibility documentation in-person.

On March 19, 2020, the DHS first announced that the physical presence requirements were deferred due to COVID-19. The DHS and ICE websites provide additional updates about when the extensions will end and when normal operations will resume.

3

DOL and New FLSA Opinion Letters

DOL announces new opinion letters addressing compliance related to FLSA.

On November 3, 2020, the U.S. Department of Labor (DOL) announced the following new opinion letters that address compliance issues related to the Fair Labor Standards Act (FLSA): 

  • FLSA2020-15: Addressing the compensability of time that employees spend attending voluntary training programs in certain situations.
  • FLSA2020-16: Addressing compensability of employee travel time in certain situations involving construction sites located away from the employer’s principal place of business.

An opinion letter is an official, written opinion by the DOL’s Wage and Hour Division (WHD) on how a particular law applies in specific circumstances.

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Individual state labor laws

State Specific Labor Law Updates:

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Employment Law Updates: October 2020

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Federal Law Updates: October 2020

Five Federal along with eight State Law Updates have been issued.  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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October 2020 Law Alerts 7 states

Labor Law Updates for October 2020

1

DOL Releases FFCRA Eligibility Tool

Tool to assist employers and employees on determining eligibility for certain types of leave.

In October 2020, the federal Department of Labor released a Families First Coronavirus Relief Act (FFCRA) eligibility webtool for employees to determine their eligibility for paid sick leave or paid expanded family and medical leave. The webtool will also assist employers in determining their obligations to provide paid sick leave or paid expanded family and medical leave. The employer webtool is still being developed.

2

COLA Increase for 2021

The Social Security Administration announced a cost-of-living adjustment.

On October 13, 2020, the Social Security Administration announced the following for January 2021:

  • The cost-of-living adjustment (COLA) will increase by 1.3 percent; and
  • The maximum amount of earnings subject to the Social Security tax (taxable maximum) will increase to $142,800 from $137,700.

Read the full announcement on the Social Security Administration’s site.

3

FAQs for Executive Order 13950 – Federal Contractors Combating Race and Sex Stereotyping

U.S. Department of Labor issued the following FAQs for Executive Order 13950.

On October 7, 2020, the U.S. Department of Labor issued the following FAQs for Executive Order 13950, “Combating Race and Sex Stereotyping,” which addresses race stereotyping, sex stereotyping, or scapegoating and federal contractors’ workplace diversity and inclusion trainings:

4

CDC Guidance for Flu Season and COVID-19

The CDC updated it’s “The Difference between the Flu and COVID-19 page.

On October 6, 2020, the Centers for Disease Control (CDC) updated it’s The Difference between the Flu and COVID-19 page and addresses the following:

  • Signs and symptoms;
  • How long symptoms appear after exposure and infection;
  • How long someone can spread the virus;
  • How it spreads;
  • People at high-risk for severe illness;
  • Complications;
  • Approved treatments; and
  • Vaccine.

On October 7, 2020, CDC also updated its Influenza (Flu) Resources page that contains the following materials for businesses and employers:

  • Flu clinic and flu prevention communication tools;
  • Education and flu prevention messages; and
  • Tools for essential workers.

5

IRS Extends Due Date for Health Coverage Forms Due Date and Other Relief

The Internal Revenue Service announced extensions on certain forms to be provided to individuals.

On October 2, 2020, the Internal Revenue Service announced (Notice 2020-76) that employers, insurers, and other providers of minimum essential coverage have until March 2, 2021 (instead of January 31, 2021) to provide the following 2020 forms to individuals:

  • Form 1095-B, Health Coverage; and
  • Form 1095-C, Employer-Provided Health Insurance Offer and Coverage, which is filed by Applicable Large Employers (ALEs).

The extension is automatic, no request required, but employers and other coverage providers are encouraged to furnish 2020 information statements as soon as they can. The notice does not extend the due date for filing the 2020 Forms 1094-B, 1095-B, 1094-C, or 1095-C with the IRS.

The notice also provides a final extension for ALEs from penalties under 26 U.S.C. §§ 6721 and 6722 for incorrect or incomplete information if they can prove their good-faith efforts to comply with Form 1095-C:

  • § 6721 imposes a penalty for the failure to file correct information returns; and
  • § 6722 imposes a penalty for the failure to furnish correct payee statements.
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Individual state labor laws

State Specific Labor Law Updates:

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Employment Law Updates: September 2020

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Federal Law Updates: September 2020

Five Federal along with seven State Law Updates have been issued.  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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September 2020 Law Alert Map

Labor Law Updates for September 2020

1

CDC Changes its COVID-19 Testing Guidance

The CDC released updated versions of previous guidance.

  • Overview of Testing for SARS-CoV-2 (COVID-19) – Summary of considerations and current CDC recommendations regarding SARS-CoV-2 testing. The update in this guidance clarified that asymptomatic persons need to be tested for COVID-19, including close contacts of those with COVID-19, because of asymptomatic and pre-symptomatic transmission. Previously, the CDC stated that people without COVID-19 symptoms do not necessarily need to be tested.
  • Guidance for Reopening Buildings After Prolonged Shutdown or Reduced Operation – The update in this guidance addressed mold awareness, monitoring, and remediation during and after prolonged building shutdowns and updated Legionella guidance for people with weakened immune systems and the use of respiratory protection when flushing water systems.

2

Form I-9 Compliance Flexibility Extended Again

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

On September 14, 2020, the U.S. Immigration and Customs Enforcement (ICE) announced an extension of the flexibilities in rules related to Form I-9 compliance that was granted earlier this year. Due to the continued COVID-19-related precautions, the Department of Homeland Security (DHS) will extend this policy until November 19, 2020.

On March 19, 2020, due to precautions implemented by employers and employees associated with COVID-19, DHS announced that it would defer the physical presence requirements associated with the Form I-9, Employment Eligibility Verification. This policy only applies to employers and workplaces that are operating remotely. If there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9.

3

DOL Revisions to FFCRA Paid Sick Leave and Expanded Family and Medical Leave Regulations

The U.S. Department of Labor’s Wage and Hour Division (WHD) posted revisions to regulations that implemented the paid sick leave and expanded family and medical leave provisions of the Families First Coronavirus Response Act (FFCRA).

On September 11, 2020, the U.S. Department of Labor’s Wage and Hour Division (WHD) posted revisions to regulations that implemented the paid sick leave and expanded family and medical leave provisions of the Families First Coronavirus Response Act (FFCRA). The revisions made by the new rule clarify workers’ rights and employers’ responsibilities under the FFCRA’s paid leave provisions, in light of the U.S. District Court for the Southern District of New York’s August 3, 2020 decision that found portions of the regulations invalid, and are effective September 16, 2020 when published in the Federal Register.

The revisions do the following: 

  • Explain the requirement that employees may take FFCRA leave only if work would otherwise be available to them.
  • Explain the requirement that an employee must have employer approval to take FFCRA leave intermittently.
  • Revise the definition of “health care provider” to include only employees who meet the definition of that term under the Family and Medical Leave Act regulations or who are employed to provide diagnostic services, preventative services, treatment services, or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care.
  • Clarify that employees must provide required documentation supporting their need for FFCRA leave to their employers as soon as practicable.
  • Correct an inconsistency regarding when employees may be required to provide notice of a need to take expanded family and medical leave to their employers.

The Department issued its initial temporary rule implementing provisions under the FFCRA on April 1, 2020. 

4

EEOC Updated COVID-19, ADA, Rehabilitation Act, and Other EEO Laws Guidance

EEOC updated the following topics in its What You Should Know About COVID 19 and the ADA, the Rehabilitation Act, and Other EEO Laws.

On September 8, 2020, the U.S. Equal Employment Opportunity Commission updated the following topics in its What You Should Know About COVID 19 and the ADA, the Rehabilitation Act, and Other EEO Laws guidance:

  • Disability-Related Inquiries and Medical Exams
    • Employer-administered COVID-19 tests.
    • Employers asking all employees physically entering the workplace if they have been diagnosed with or tested for COVID-19.
    • Employers asking COVID-19 questions specific to one employee and not all.
    • Employers asking employees in the workplace about family members with COVID-19 diagnosis.
    • Employees who refuse to temperature-taking or answering COVID-19 questions.
    • Employers requesting information from employees about whether they are sick or why they were absent from work.
  • Confidentiality of Medical Information
    • Reporting when an employee has COVID-19 and ADA confidentiality requirements.
    • Employee reporting another employee’s COVID-19 symptoms and ADA confidentiality.
    • Teleworking employees with COVID-19, reporting, and keeping ADA information confidential.
  • Reasonable Accommodation
    • Employers inviting employee to currently ask for a future reasonable accommodation.
    • Reasonable accommodation for teleworking employees during COVID-19.
    • Automatic teleworking as a reasonable accommodation after reopening.
    • Returning employee with a disability and a new accommodation request to telework when the prior request to telework was previously denied.
    • Excusable delays during the interactive process and COVID-19.
    • Federal agencies and delayed timelines due to COVID-19.
  • Furloughs and Layoffs
    • Additional EEO consideration in furloughs or layoffs.
  • Age
    • Employer offering flexibilities to other workers cannot treat older comparable workers less favorably based on age.

Disability-Related Inquiries and Medical Exams

A.6.  May an employer administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) when evaluating an employee’s initial or continued presence in the workplace? (4/23/20; updated 9/8/20 to address stakeholder questions about updates to CDC guidance)

The ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.” Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take screening steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore an employer may choose to administer COVID-19 testing to employees before initially permitting them to enter the workplace and/or periodically to determine if their presence in the workplace poses a direct threat to others. The ADA does not interfere with employers following recommendations by the CDC or other public health authorities regarding whether, when, and for whom testing or other screening is appropriate. Testing administered by employers consistent with current CDC guidance will meet the ADA’s “business necessity” standard.

Consistent with the ADA standard, employers should ensure that the tests are considered accurate and reliable. For example, employers may review information from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities. Because the CDC and FDA may revise their recommendations based on new information, it may be helpful to check these agency websites for updates. Employers may wish to consider the incidence of false-positives or false-negatives associated with a particular test. Note that a positive test result reveals that an individual most likely has a current infection and may be able to transmit the virus to others. A negative test result means that the individual did not have detectable COVID-19 at the time of testing.   

A negative test does not mean the employee will not acquire the virus later. Based on guidance from medical and public health authorities, employers should still require–to the greatest extent possible–that employees observe infection control practices (such as social distancing, regular handwashing, and other measures) in the workplace to prevent transmission of COVID-19.

Note: Questions A.6 and A.8 address screening of employees generally. See Question A.9 regarding decisions to screen individual employees.

A.8.  May employers ask all employees physically entering the workplace if they have been diagnosed with or tested for COVID-19? (9/8/20; adapted from 3/27/20 Webinar Question 1)

Yes. Employers may ask all employees who will be physically entering the workplace if they have COVID-19 or symptoms associated with COVID-19, and if they have been tested for COVID-19. Symptoms associated with COVID-19 include, for example, fever, chills, cough, and shortness of breath. The CDC has identified a current list of symptoms.

An employer may exclude those with COVID-19, or symptoms associated with COVID-19, from the workplace because, as EEOC has stated, their presence would pose a direct threat to the health or safety of others. However, for those employees who are teleworking and are not physically interacting with coworkers or others (for example, customers), the employer would generally not be permitted to ask these questions.

A.9.  May a manager ask only one employee—as opposed to asking all employees—questions designed to determine if she has COVID-19, or require that this employee alone have her temperature taken or undergo other screening or testing? (9/8/20; adapted from 3/27/20 Webinar Question 3)

If an employer wishes to ask only a particular employee to answer such questions, or to have her temperature taken or undergo other screening or testing, the ADA requires the employer to have a reasonable belief based on objective evidence that this person might have the disease. So, it is important for the employer to consider why it wishes to take these actions regarding this particular employee, such as a display of COVID-19 symptoms. In addition, the ADA does not interfere with employers following recommendations by the CDC or other public health authorities regarding whether, when, and for whom testing or other screening is appropriate.

A.10.  May an employer ask an employee who is physically coming into the workplace whether they have family members who have COVID-19 or symptoms associated with COVID-19? (9/8/20; adapted from 3/27/20 Webinar Question 4)

No. The Genetic Information Nondiscrimination Act (GINA) prohibits employers from asking employees medical questions about family members. GINA, however, does not prohibit an employer from asking employees whether they have had contact with anyone diagnosed with COVID-19 or who may have symptoms associated with the disease. Moreover, from a public health perspective, only asking an employee about his contact with family members would unnecessarily limit the information obtained about an employee’s potential exposure to COVID-19.

A.11.  What may an employer do under the ADA if an employee refuses to permit the employer to take his temperature or refuses to answer questions about whether he has COVID-19, has symptoms associated with COVID-19, or has been tested for COVID-19? (9/8/20; adapted from 3/27/20 Webinar Question 2)

Under the circumstances existing currently, the ADA allows an employer to bar an employee from physical presence in the workplace if he refuses to have his temperature taken or refuses to answer questions about whether he has COVID-19, has symptoms associated with COVID-19, or has been tested for COVID-19. To gain the cooperation of employees, however, employers may wish to ask the reasons for the employee’s refusal. The employer may be able to provide information or reassurance that they are taking these steps to ensure the safety of everyone in the workplace, and that these steps are consistent with health screening recommendations from CDC. Sometimes, employees are reluctant to provide medical information because they fear an employer may widely spread such personal medical information throughout the workplace. The ADA prohibits such broad disclosures. Alternatively, if an employee requests reasonable accommodation with respect to screening, the usual accommodation process should be followed; this is discussed in Question G.7.

A.12.  During the COVID-19 pandemic, may an employer request information from employees who work on-site, whether regularly or occasionally, who report feeling ill or who call in sick? (9/8/20; adapted from Pandemic Preparedness Question 6)

Due to the COVID-19 pandemic, at this time employers may ask employees who work on-site, whether regularly or occasionally, and report feeling ill or who call in sick, questions about their symptoms as part of workplace screening for COVID-19.

A.13.  May an employer ask an employee why he or she has been absent from work? (9/8/20; adapted from Pandemic Preparedness Question 15)

Yes. Asking why an individual did not report to work is not a disability-related inquiry. An employer is always entitled to know why an employee has not reported for work.

A.14.  When an employee returns from travel during a pandemic, must an employer wait until the employee develops COVID-19 symptoms to ask questions about where the person has traveled? (9/8/20; adapted from Pandemic Preparedness Question 8)

No. Questions about where a person traveled would not be disability-related inquiries. If the CDC or state or local public health officials recommend that people who visit specified locations remain at home for a certain period of time, an employer may ask whether employees are returning from these locations, even if the travel was personal.

Confidentiality of Medical Information

B.5.  Suppose a manager learns that an employee has COVID-19, or has symptoms associated with the disease. The manager knows she must report it but is worried about violating ADA confidentiality. What should she do?  (9/8/20; adapted from 3/27/20 Webinar Question 5)

The ADA requires that an employer keep all medical information about employees confidential, even if that information is not about a disability. Clearly, the information that an employee has symptoms of, or a diagnosis of, COVID-19, is medical information. But the fact that this is medical information does not prevent the manager from reporting to appropriate employer officials so that they can take actions consistent with guidance from the CDC and other public health authorities.

The question is really what information to report: is it the fact that an employee—unnamed—has symptoms of COVID-19 or a diagnosis, or is it the identity of that employee? Who in the organization needs to know the identity of the employee will depend on each workplace and why a specific official needs this information. Employers should make every effort to limit the number of people who get to know the name of the employee.

The ADA does not interfere with a designated representative of the employer interviewing the employee to get a list of people with whom the employee possibly had contact through the workplace, so that the employer can then take action to notify those who may have come into contact with the employee, without revealing the employee’s identity. For example, using a generic descriptor, such as telling employees that “someone at this location” or “someone on the fourth floor” has COVID-19, provides notice and does not violate the ADA’s prohibition of disclosure of confidential medical information. For small employers, coworkers might be able to figure out who the employee is, but employers in that situation are still prohibited from confirming or revealing the employee’s identity. Also, all employer officials who are designated as needing to know the identity of an employee should be specifically instructed that they must maintain the confidentiality of this information. Employers may want to plan in advance what supervisors and managers should do if this situation arises and determine who will be responsible for receiving information and taking next steps.

B.6.  An employee who must report to the workplace knows that a coworker who reports to the same workplace has symptoms associated with COVID-19. Does ADA confidentiality prevent the first employee from disclosing the coworker’s symptoms to a supervisor? (9/8/20; adapted from 3/27/20 Webinar Question 6)

No. ADA confidentiality does not prevent this employee from communicating to his supervisor about a coworker’s symptoms. In other words, it is not an ADA confidentiality violation for this employee to inform his supervisor about a coworker’s symptoms. After learning about this situation, the supervisor should contact appropriate management officials to report this information and discuss next steps.

B.7.  An employer knows that an employee is teleworking because the person has COVID-19 or symptoms associated with the disease, and that he is in self-quarantine. May the employer tell staff that this particular employee is teleworking without saying why? (9/8/20; adapted from 3/27/20 Webinar Question 7)

Yes. If staff need to know how to contact the employee, and that the employee is working even if not present in the workplace, then disclosure that the employee is teleworking without saying why is permissible. Also, if the employee was on leave rather than teleworking because he has COVID-19 or symptoms associated with the disease, or any other medical condition, then an employer cannot disclose the reason for the leave, just the fact that the individual is on leave.

B.8.  Many employees, including managers and supervisors, are now teleworking as a result of COVID-19. How are they supposed to keep medical information of employees confidential while working remotely? (9/8/20; adapted from 3/27/20 Webinar Question 9)

The ADA requirement that medical information be kept confidential includes a requirement that it be stored separately from regular personnel files. If a manager or supervisor receives medical information involving COVID-19, or any other medical information, while teleworking, and is able to follow an employer’s existing confidentiality protocols while working remotely, the supervisor has to do so. But to the extent that is not feasible, the supervisor still must safeguard this information to the greatest extent possible until the supervisor can properly store it. This means that paper notepads, laptops, or other devices should not be left where others can access the protected information.

Similarly, documentation must not be stored electronically where others would have access. A manager may even wish to use initials or another code to further ensure confidentiality of the name of an employee.

Reasonable Accommodation

D.8.  May an employer invite employees now to ask for reasonable accommodations they may need in the future when they are permitted to return to the workplace? (4/17/20; updated 9/8/20 to address stakeholder questions)

Yes. Employers may inform the workforce that employees with disabilities may request accommodations in advance that they believe they may need when the workplace re-opens. This is discussed in greater detail in Question G.6. If advance requests are received, employers may begin the “interactive process” – the discussion between the employer and employee focused on whether the impairment is a disability and the reasons that an accommodation is needed. If an employee chooses not to request accommodation in advance, and instead requests it at a later time, the employer must still consider the request at that time.

D.14.  When an employer requires some or all of its employees to telework because of COVID-19 or government officials require employers to shut down their facilities and have workers telework, is the employer required to provide a teleworking employee with the same reasonable accommodations for disability under the ADA or the Rehabilitation Act that it provides to this individual in the workplace?  (9/8/20; adapted from 3/27/20 Webinar Question 20)

If such a request is made, the employer and employee should discuss what the employee needs and why, and whether the same or a different accommodation could suffice in the home setting. For example, an employee may already have certain things in their home to enable them to do their job so that they do not need to have all of the accommodations that are provided in the workplace.

Also, the undue hardship considerations might be different when evaluating a request for accommodation when teleworking rather than working in the workplace. A reasonable accommodation that is feasible and does not pose an undue hardship in the workplace might pose one when considering circumstances, such as the place where it is needed and the reason for telework. For example, the fact that the period of telework may be of a temporary or unknown duration may render certain accommodations either not feasible or an undue hardship. There may also be constraints on the normal availability of items or on the ability of an employer to conduct a necessary assessment.

As a practical matter, and in light of the circumstances that led to the need for telework, employers and employees should both be creative and flexible about what can be done when an employee needs a reasonable accommodation for telework at home. If possible, providing interim accommodations might be appropriate while an employer discusses a request with the employee or is waiting for additional information.

D.15.  Assume that an employer grants telework to employees for the purpose of slowing or stopping the spread of COVID-19. When an employer reopens the workplace and recalls employees to the worksite, does the employer automatically have to grant telework as a reasonable accommodation to every employee with a disability who requests to continue this arrangement as an ADA/Rehabilitation Act accommodation?  (9/8/20; adapted from 3/27/20 Webinar Question 21)

No. Any time an employee requests a reasonable accommodation, the employer is entitled to understand the disability-related limitation that necessitates an accommodation. If there is no disability-related limitation that requires teleworking, then the employer does not have to provide telework as an accommodation. Or, if there is a disability-related limitation but the employer can effectively address the need with another form of reasonable accommodation at the workplace, then the employer can choose that alternative to telework.

To the extent that an employer is permitting telework to employees because of COVID-19 and is choosing to excuse an employee from performing one or more essential functions, then a request—after the workplace reopens—to continue telework as a reasonable accommodation does not have to be granted if it requires continuing to excuse the employee from performing an essential function. The ADA never requires an employer to eliminate an essential function as an accommodation for an individual with a disability. 

The fact that an employer temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework for the purpose of protecting their safety from COVID-19, or otherwise chose to permit telework, does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship. These are fact-specific determinations. The employer has no obligation under the ADA to refrain from restoring all of an employee’s essential duties at such time as it chooses to restore the prior work arrangement, and then evaluating any requests for continued or new accommodations under the usual ADA rules.

D.16.  Assume that prior to the emergence of the COVID-19 pandemic, an employee with a disability had requested telework as a reasonable accommodation. The employee had shown a disability-related need for this accommodation, but the employer denied it because of concerns that the employee would not be able to perform the essential functions remotely. In the past, the employee therefore continued to come to the workplace. However, after the COVID-19 crisis has subsided and temporary telework ends, the employee renews her request for telework as a reasonable accommodation. Can the employer again refuse the request? (9/8/20; adapted from 3/27/20 Webinar Question 22)

Assuming all the requirements for such a reasonable accommodation are satisfied, the temporary telework experience could be relevant to considering the renewed request. In this situation, for example, the period of providing telework because of the COVID-19 pandemic could serve as a trial period that showed whether or not this employee with a disability could satisfactorily perform all essential functions while working remotely, and the employer should consider any new requests in light of this information. As with all accommodation requests, the employee and the employer should engage in a flexible, cooperative interactive process going forward if this issue does arise.

D.17.  Might the pandemic result in excusable delays during the interactive process? (9/8/20; adapted from 3/27/20 Webinar Question 19)

Yes. The rapid spread of COVID-19 has disrupted normal work routines and may have resulted in unexpected or increased requests for reasonable accommodation. Although employers and employees should address these requests as soon as possible, the extraordinary circumstances of the COVID-19 pandemic may result in delay in discussing requests and in providing accommodation where warranted. Employers and employees are encouraged to use interim solutions to enable employees to keep working as much as possible.

D.18.  Federal agencies are required to have timelines in their written reasonable accommodation procedures governing how quickly they will process requests and provide reasonable accommodations. What happens if circumstances created by the pandemic prevent an agency from meeting this timeline? (9/8/20; adapted from 3/27/20 Webinar Question 19)

Situations created by the current COVID-19 crisis may constitute an “extenuating circumstance”—something beyond a Federal agency’s control—that may justify exceeding the normal timeline that an agency has adopted in its internal reasonable accommodation procedures. 

Furloughs and Layoffs

F.2.  What are additional EEO considerations in planning furloughs or layoffs? (9/8/20; adapted from 3/27/20 Webinar Question 13)

The laws enforced by the EEOC prohibit covered employers from selecting people for furlough or layoff because of that individual’s race, color, religion, national origin, sex, age, disability, protected genetic information, or in retaliation for protected EEO activity.

Age

H.2.  If an employer is choosing to offer flexibilities to other workers, may older comparable workers be treated less favorably based on age? (9/8/20; adapted from 3/27/20 Webinar Question 12)

No. If an employer is allowing other comparable workers to telework, it should make sure it is not treating older workers less favorably based on their age.

5

Deferring Federal Payroll Tax Obligations and COVID-19

The U.S. Deparment of Treasury issued guidance authorizing deferral of withholding, deposit, and payment of Social Security payroll tax obligations for affected payers.

On August 28, 2020, the U.S. Department of the Treasury issued guidance to address President Trump’s August 8 memo authorizing the deferral of the withholding, deposit, and payment of Social Security payroll tax obligations for affected taxpayers. Employers are not required to defer the payment of Social Security taxes (the deferral is optional), but any deferred taxes must be repaid. The guidance and the memo do not address whether employees can elect to defer (or decline the deferral of) this federal payroll tax.

Affected taxpayers are defined as employers that:

  • Are required to withhold and pay their employees’ share of federal payroll taxes (OASDI/Social Security taxes and Medicare, collectively FICA); and
  • Are affected by the COVID-19 emergency.

The tax deferral is applicable to:

  • Wages paid September 1, 2020 through December 31, 2020; and
  • Only for employees who earn less than $4,000 during any biweekly pay period, before taxes, or the equivalent amount for other pay periods.

The $4,000 threshold determination is made on a pay period by pay period basis. For instance, if an employee’s pay for one pay period is less than $4,000, that amount is considered applicable wages for that pay period, and the deferral applies to the wages paid to that employee for that pay period, regardless of their wages from other pay periods.

This deferral is without penalty interest, additional amounts, or addition to the tax; however, payment of these taxes is delayed — not forgiven — and the deferred taxes must be paid the following year. Congressional action may change this repayment requirement, but for now, employers must withhold and pay the total applicable taxes that were previously deferred in 2020 — along with those that will be due for 2021 — on the wages they pay between January 1, 2021 and April 30, 2021.

Failure to make these tax payments in 2021 will result in interest and penalties, and additions to tax will begin to accrue on May 1, 2021 on any unpaid amounts. If necessary, employers may plan to otherwise collect the total applicable taxes from the employee.

Note: The U.S. Department of Defense (DoD) is automatically deferring the withholding, effective September 2020, and civilian employees’ 6.2 percent OASDI tax withholding will be temporarily deferred if their wages, subject to OASDI, are less than $4,000 in any given pay period. The DoD provides a fact sheet and in depth FAQs addressing the program and deferral. For instance, an FAQ addresses that employees who separate or retire in 2020,before the Social Security tax can be collected in 2021, are still responsible for the Social Security tax repayment.

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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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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.

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Individual State Labor Laws

State Specific Labor Law Updates:

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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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Individual State Labor Laws

State Specific Labor Law Updates

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Previous Labor Laws & Information

Employment Law Updates: May 2020

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Federal & State Employment Law Updates: May 2020

Seven States have updated their employment laws so far this month, alongside sixteen 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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Federal Law Alerts May 2020

Labor Law Updates for May 2020

1

OSHA Revised COVID-19 Case Reporting and Updated Response Plan

An emergency declaration regarding suspensions of regulations for permissible drive times for commercial drivers. 

On May 19, 2020, the Occupational Safety and Health Administration (OSHA) revised its enforcement guidance for recording COVID-19 cases. On May 26, 2020, the previous memo on this topic will be rescinded, and this new memorandum goes into and remains in effect until further notice. Under OSHA’s recordkeeping requirements, COVID-19 is a recordable illness, and thus employers are responsible for recording cases of it, if:

  • The case is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention (CDC);
  • The case is work-related; and
  • The case involves one or more of the general recording criteria.

 

In addition, OSHA updated its interim enforcement response plan for COVID-19 with instructions and guidance to Area Offices and compliance safety and health officers (CSHOs) for handling COVID-19-related complaints, referrals, and severe illness reports. On May 26, 2020, the previous memo on this topic will be rescinded, and this new update goes into and remains in effect until further notice. As workplaces reopen, OSHA will continue to ensure safe and healthy conditions pursuant to the following framework:

  • In areas where community spread of COVID-19 has significantly decreased, OSHA will return to its pre-COVID-19 inspection planning policy when prioritizing reported events for inspections, except that:
    • OSHA will continue to prioritize COVID-19 cases;
    • OSHA will utilize non-formal phone/fax investigations or rapid response investigations in circumstances where it has historically performed such inspections (e.g., to address formal complaints) when necessary to assure effective and efficient use of resources to address COVID-19-related events; and
    • In all instances, CSHOs must utilize the appropriate precautions and personal protective equipment (PPE) when performing COVID-19-related inspections.

 

  • In areas where there is sustained elevated community transmission or a resurgence in community transmission of COVID-19, Area Directors will exercise their discretion, including consideration of available resources, to:
    • Continue prioritizing COVID-19 fatalities and imminent danger exposures for inspection. Particular attention for on-site inspections will be given to high-risk workplaces, such as hospitals and other healthcare providers treating patients with COVID-19, as well as workplaces, with high numbers of complaints or known COVID-19 cases. In addition:
      • Where resources do not allow for on-site inspections, the inspections will be initiated remotely with an expectation that an on-site component will be performed if/when resources become available.
      • Where neither an on-site nor remote inspection is possible, OSHA will investigate using a rapid response investigation to identify any hazards, provide abatement assistance, and confirm abatement.
      • OSHA will develop a program to conduct monitoring inspections from a randomized sampling of fatality or imminent danger cases where inspections were not conducted due to resource limitations.
    • Utilize non-formal phone/fax investigation instead of an on-site inspection in industries where doing so can address the relevant hazard(s).
    • Ensure that CSHOs utilize the appropriate precautions and personal protective equipment to protect against potential exposures to COVID-19.

 

Both the guidance and plan are intended to be time-limited to the current COVID-19 public health crisis.

2

Paycheck Protection Program Loan Forgiveness Application

On May 15, 2020, the Small Business Administration (SBA) released the Paycheck Protection Program (PPP) loan forgiveness application, with instructions, to inform borrowers about applying for forgiveness of their PPP loans at the conclusion of the eight-week covered period, which began with the disbursement of their loans. The PPP was created by the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) to provide forgivable loans to eligible small businesses to keep workers on the payroll during the COVID-19 pandemic. 

The form and instructions include:

  • Options for borrowers to calculate payroll costs using an “alternative payroll covered period” that aligns with their regular payroll cycles.
  • Flexibility to include eligible payroll and non-payroll expenses paid or incurred during the eight-week period after receiving their PPP loan.
  • Instructions on how to complete the calculations required by the CARES Act to confirm eligibility for loan forgiveness.
  • Statutory exemptions from loan forgiveness reduction based on rehiring by June 30.
  • A new exemption from the loan forgiveness reduction for borrowers who made a good-faith, written offer to rehire workers, which was declined.

View the application and instructions.

3

Workplace Decision Tree and COVID-19

The Centers for Disease Control and Prevention (CDC) released a workplace decision tree to assist employers in making reopening decisions during the COVID-19 pandemic. The tool walks employers through the following steps:

  • Whether they should consider reopening;
  • If they plan to reopen, whether recommended health and safety actions are in place; and 
  • If in place, how they can ensure ongoing monitoring for maintaining safety.

 

If employers cannot answer “yes” to the questions posed in the tool, the CDC recommends that they reassess and meet the necessary safeguards prior to reopening. The CDC also reminds employers to check with their state and local health officials to determine the most appropriate actions while adjusting to meet the needs and circumstances of their local community.

See the decision tree.

4

Overtime and Fluctuating Workweek

On May 20, 2020, the U.S. Department of Labor (DOL) announced a final rule allowing employers to pay bonuses, premium payments, or other additional pay, such as commissions and hazard pay, to employees compensated using the fluctuating workweek method of compensation. For overtime purposes, these supplemental payments must be included in the calculation of the regular rate unless they are excludable under the federal Fair Labor Standards Act (§§ 7(e)(1) – (8)). Currently, this fluctuating workweek method may not be used by employers who compensate their employees with bonuses or other incentive-based pay. 

Background

The Fair Labor Standards Act (FLSA) requires that employers pay their nonexempt employees overtime of at least one and one-half times their regular rate for all hours worked over 40 in a workweek. The regular rate is computed for each workweek and is all remuneration for employment, with some exclusions, divided by the number of hours worked. The regular rate is determined by dividing the total pay in any workweek by the total number of hours actually worked.

Fluctuating Workweek Method

The fluctuating workweek method allows employers to calculate overtime pay for nonexempt employees who are paid a fixed salary for hours that vary each week. Specifically, an employer may use this method to compute overtime compensation when:

  • The employee’s work hours fluctuate from week to week;
  • The employee receives a fixed salary that does not vary with the number of hours they work in the workweek, whether few or many;
  • The amount of the employee’s fixed salary is enough to pay them at least the applicable minimum wage for every hour they worked in workweeks when they worked the most hours;
  • The employee and the employer have a clear and mutual understanding that the employee’s fixed salary is compensation (apart from overtime premiums and any bonuses, premium payments, commissions, hazard pay, or other additional pay of any kind not excludable from the regular rate under FLSA §§ 7(e)(l) – (8) for the total hours worked each workweek regardless of the number of hours; and
  • The employee receives overtime pay, in addition to their fixed salary and any bonuses, premium payments, commissions, hazard pay, and additional pay of any kind, for all overtime hours worked at no less than one-half the employee’s regular rate of pay for that workweek.

 

Since the salary is fixed, an employee’s regular rate will vary from week to week and is determined by dividing the amount of the salary and any non-excludable additional pay received each workweek by the number of hours worked in the workweek.

Payment for overtime hours, at no less than one-half of this rate, is compliant because these hours have already been compensated at the straight time rate (by payment of the fixed salary and non-excludable additional pay). Payment of any bonuses, premium payments, commissions, hazard pay, and additional pay of any kind is compatible with the fluctuating workweek method of overtime payment, and such payments must be included in the calculation of the regular rate unless excludable under § 7(e)(1) through (8).

Scenario and Example

The DOL provides the following scenario and example to demonstrate overtime and a fluctuating workweek:

Scenario: An employee whose hours of work do not customarily follow a regular schedule but vary from week to week, whose work hours never exceed 50 hours in a workweek, and whose salary of $600 a week is paid with the understanding that it constitutes the employee’s compensation (apart from overtime premiums and any bonuses, premium payments, commissions, hazard pay, or other additional pay of any kind not excludable from the regular rate under §§ 7(e)(1) – (8)) for all hours worked in the workweek.

Example: If during the course of four weeks this employee receives no additional compensation and works 37.5, 44, 50, and 48 hours, the regular rate of pay in each of these weeks is $16, $13.64, $12, and $12.50, respectively. Since the employee has already received straight time compensation for all hours worked in these weeks, only additional half-time pay is due for overtime hours. For the first week the employee is owed $600 (fixed salary of $600, with no overtime hours); for the second week $627.28 (fixed salary of $600, and 4 hours of overtime pay at one-half times the regular rate of $13.64 for a total overtime payment of $27.28); for the third week $660 (fixed salary of $600, and 10 hours of overtime pay at one-half times the regular rate of $12 for a total overtime payment of $60); for the fourth week $650 (fixed salary of $600, and 8 overtime hours at one-half times the regular rate of $12.50 for a total overtime payment of $50).

The DOL included a disclaimer that this final rule was submitted to the Office of the Federal Register (OFR) for publication, and is currently pending placement upon public inspection at the OFR and publication in the Federal Register. The current version of the final rule may vary from the published version if minor technical or formatting changes are made during the OFR review process. Importantly, only the version published in the Federal Register is the official final rule.

The final rule is effective 60 days after final publication.

Read the announcement and final rule.

5

DOL and Commissioned Sales Overtime Exemption

On May 18, 2020, the U.S. Department of Labor’s Wage and Hour Division (WHD) modified its former interpretation of the Fair Labor Standards Act’s overtime exemption for primarily commission-based employees of retail or service employers (§ 7(i) exemption). To meet the commissioned sales overtime exemption, a worker:

  • Must be employed in a “retail or service” establishment;
  • Must earn at least 1.5 times the minimum wage; and
  • More than half their compensation for a representative period (not less than one month) must represent commissions.

 

In 1961 and 1970, the Department of Labor (DOL) released two interpretive rules with long lists of businesses that were not retail (“no retail concepts”) or might be retail (“may be recognized as retail”). These lists, although not binding on the courts, created flexibility in commissioned employees’ overtime entitlement by more broadly interpreting whether the employee was actually working for a “retail or service” employer (and thus entitled to overtime compensation). The DOL’s recent modification eliminated the aforementioned lists and instead will apply a single standard when determining whether an establishment is “retail or service”:

“Retail or service establishments sell goods or services to the general public, serve the everyday needs of the community, are at the very end of the stream of distribution, dispose their products and skills in small quantities, and do not take part in the manufacturing process.” (29 C.F.R. § 779.318(a))

As a result, more commission-based workers may be exempt from the FLSA overtime requirements because this recent interpretation treats their employer as a “retail or service” establishment.

The WHD issued this rule without notice or comment, and it took immediate effect.

Read the final rule and fact sheet.

6

Department of Labor’s COVID-19 Updates

On May 15, 2020, the U.S. Department of Labor (DOL) announced all of the following COVID-19 updates and resources:

7

Form I-9 Compliance Flexibility Extended

On May 14, 2020, the U.S. Immigration and Customs Enforcement (ICE) announced an extension of rules allowing employers flexibility in Form I-9 compliance. Under the rules, employers may forego the requirement that an employee’s identity and employment authorization documents (Form I-9 Section 2 documents) be reviewed in the employee’s physical presence. This in-person flexibility was permitted because many employers and employees were taking physical proximity precautions due to COVID-19. Instead, employers must take the following actions to verify an employee’s identity and employment authorization via Section 2 documents:

  • Inspect the Section 2 documents remotely (over video link, fax, or email); and
  • Obtain, inspect, and retain copies of these documents within three business days.

 

This flexibility in identity and authorization documents only applies to employers and workplaces that are operating remotely. The May 14 announcement extends the flexibility for an additional 30 days (it was set to expire on May 19) in response to the need for continued COVID-19 precautions.

Additionally, effective March 19, 2020, employers who were served notices of inspection from ICE during the month of March 2020, and did not respond, were granted an automatic extension for 60 days from the effective date. ICE will grant an additional 30-day extension for these employers as well, if needed.

Read the announcement and original guidance.

8

Payroll Protection Program and Employee Retention Credits

On May 7, 2020, the Internal Revenue Service (IRS) updated its frequently asked questions (FAQs) about the Payroll Protection Program (PPP) and the Employee Retention Credit under the Cares Act. The Employee Retention Credit (ERC) is a tax credit equal to 50 percent of the qualified wages that eligible employers paid to employees (up to $5,000 per employee) after March 12, 2020 and before January 1, 2021. Employers that receive a PPP loan are not qualified for the ERC.

The IRS clarified in its updated FAQ that an employer that repays its PPP loan by May 14, 2020 will be treated as though they did not receive it and may still receive the ERC (if otherwise eligible). This updated FAQ is important because the repayment date was originally May 7, 2020.

See the FAQs and read about the Employee Retention Credit.

9

EEOC, COVID-19, ADA, the Rehabilitation Act, and Other EEO Laws

On May 5, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) updated the following technical assistance questions and answers addressing return to work and the Americans with Disabilities Act (ADA), the Rehabilitation Act, and other equal employment opportunity (EEO) laws:

(G.3) What does an employee need to do in order to request reasonable accommodation from their employer because they have one of the medical conditions that CDC says may put them at higher risk for severe illness from COVID-19? (updated 5/5/20)

An employee – or a third party, such as an employee’s doctor – must let the employer know that they need a change for a reason related to a medical condition (here, the underlying condition). Individuals may request accommodation in conversation or in writing. While the employee (or third party) does not need to use the term “reasonable accommodation” or reference the ADA, they may do so. 

The employee or their representative should communicate that they have a medical condition that necessitates a change to meet a medical need. After receiving a request, the employer may ask questions or seek medical documentation to help decide if the individual has a disability and if there is a reasonable accommodation, barring undue hardship, that can be provided. 

(G.4) The CDC identifies a number of medical conditions that might place individuals at “higher risk for severe illness” if they get COVID-19.  An employer knows that an employee has one of these conditions and is concerned that his health will be jeopardized upon returning to the workplace, but the employee has not requested accommodation.  How does the ADA apply to this situation? (5/7/20)

First, if the employee does not request a reasonable accommodation, the ADA does not mandate that the employer act.

If the employer is concerned about the employee’s health being jeopardized upon returning to the workplace, the ADA does not allow the employer to exclude the employee – or take any other adverse action – solely because the employee has a disability that the CDC identifies as potentially placing them at “higher risk for severe illness” if they get COVID-19. Under the ADA, such action is not allowed unless the employee’s disability poses a “direct threat” to their health that cannot be eliminated or reduced by reasonable accommodation.

The ADA direct threat requirement is a high standard. As an affirmative defense, direct threat requires an employer to show that the individual has a disability that poses a “significant risk of substantial harm” to their own health under 29 CFR § 1630.2(r). A direct threat assessment cannot be based solely on the condition being on the CDC’s list; the determination must be an individualized assessment based on a reasonable medical judgment about this employee’s disability – not the disability in general – using the most current medical knowledge and/or on the best available objective evidence. The ADA regulation requires an employer to consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm. Analysis of these factors will likely include considerations based on the severity of the pandemic in a particular area and the employee’s own health (for example, is the employee’s disability well-controlled), and their particular job duties. A determination of direct threat also would include the likelihood that an individual will be exposed to the virus at the worksite. Measures that an employer may be taking in general to protect all workers, such as mandatory social distancing, also would be relevant.

Even if an employer determines that an employee’s disability poses a direct threat to his own health, the employer still cannot exclude the employee from the workplace – or take any other adverse action – unless there is no way to provide a reasonable accommodation (absent undue hardship). The ADA regulations require an employer to consider whether there are reasonable accommodations that would eliminate or reduce the risk so that it would be safe for the employee to return to the workplace while still permitting performance of essential functions. This can involve an interactive process with the employee. If there are not accommodations that permit this, then an employer must consider accommodations such as telework, leave, or reassignment (perhaps to a different job in a place where it may be safer for the employee to work or that permits telework). An employer may only bar an employee from the workplace if, after going through all these steps, the facts support the conclusion that the employee poses a significant risk of substantial harm to themselves that cannot be reduced or eliminated by reasonable accommodation.

(G.5) What are examples of accommodation that, absent undue hardship, may eliminate (or reduce to an acceptable level) a direct threat to self? (updated 5/5/20)

Accommodations may include additional or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to employees returning to its workplace. Accommodations also may include additional or enhanced protective measures, for example, erecting a barrier that provides separation between an employee with a disability and coworkers/the public or increasing the space between an employee with a disability and others. Another possible reasonable accommodation may be elimination or substitution of particular “marginal” functions (less critical or incidental job duties as distinguished from the “essential” functions of a particular position). In addition, accommodations may include temporary modification of work schedules (if that decreases contact with coworkers and/or the public when on duty or commuting) or moving the location of where one performs work (for example, moving a person to the end of a production line rather than in the middle of it if that provides more social distancing).  

These are only a few ideas. Identifying an effective accommodation depends, among other things, on an employee’s job duties and the design of the workspace. An employer and employee should discuss possible ideas; the Job Accommodation Network (www.askjan.org) also may be able to assist in helping identify possible accommodations. As with all discussions of reasonable accommodation during this pandemic, employers and employees are encouraged to be creative and flexible.

See the updated questions and answers and all EEOC materials related to COVID-19.

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Employment Law Updates: April 2020

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Federal & State Employment Law Updates: April 2020

Fourteen States have updated their employment laws so far this month, alongside nine 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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Employment Law Updates April 2020

Labor Law Updates for April 2020

1

COVID-19, Commercial Drivers, and Hours of Service Temporary Suspension

An emergency declaration regarding suspensions of regulations for permissible drive times for commercial drivers. 

On March 13, 2020, the federal Department of Transportation (DOT) released an emergency declaration (No. 2020-002), with an extension on April 8, 2020, in response to national emergency conditions caused by COVID-19 that create an immediate need for transportation of essential supplies, equipment, and persons. It also provides necessary relief from the Federal Motor Carrier Safety Regulations for motor carriers and drivers engaged in the transport of these essential supplies, equipment, and persons.

Under the declaration, the DOT’s hours of service requirements that regulate permissible drive time are temporarily suspended for commercial motor vehicle operations that provide direct assistance in support of emergency relief efforts related to the COVID-19 outbreaks, including transportation to meet immediate needs for:

  1. Medical supplies and equipment related to the testing, diagnosis, and treatment of COVID-19;
  2. Supplies and equipment necessary for community safety, sanitation, and prevention of community transmission of COVID-19 such as masks, gloves, hand sanitizer, soap, and disinfectants;
  3. Food, paper products, and other groceries for emergency restocking of distribution centers or stores;
  4. Immediate precursor raw materials — such as paper, plastic, or alcohol — that are required and to be used for the manufacture of items in bullets 1, 2, 3, or 5;
  5. Liquefied gases to be used in refrigeration or cooling systems;
  6. Equipment, supplies, and persons necessary to establish and manage temporary housing, quarantine, and isolation facilities related to COVID-19;
  7. Persons designated by federal, state, or local authorities for medical, isolation, or quarantine purposes; and
  8. Persons necessary to provide other medical or emergency services, the supply of which may be affected by the COVID-19 response.

Direct assistance does not include routine commercial deliveries, including mixed loads with a nominal quantity of qualifying emergency relief added to obtain the benefits of this emergency declaration.

Direct assistance terminates when a driver or commercial motor vehicle is used in interstate commerce to transport cargo or provide services that are not in support of COVID-19 emergency relief efforts or when the motor carrier dispatches a driver or commercial motor vehicle to another location to begin operations in commerce. Upon termination of direct assistance, the motor carrier and driver are subject to the standard DOT requirements, except that a driver may return empty to the motor carrier’s terminal or the driver’s normal work reporting location without complying with Parts 390 through 399.

When a driver is moving from emergency relief efforts to normal operations, a 10-hour break is required when the total time a driver operates conducting emergency relief efforts, or a combination of emergency relief and normal operations, equals 14 hours.

The declaration does not permit motor carriers to require or allow fatigued drivers to operate a commercial motor vehicle. A driver who informs a carrier that they need immediate rest must be given at least 10 consecutive hours before they are required to return to service.

The declaration and its extension took immediate effect and are operative through May 15, 2020.

Read the declaration and its extension.

2

EEOC Issues Updated Covid-19 Technical Assistance Publication

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

On April 17, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) posted an updated technical assistance publication addressing questions arising under the Federal Equal Employment Opportunity Laws related to the COVID-19 pandemic. The publication, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, expands on a previous publication that focused on the ADA and Rehabilitation Act, and adds questions-and-answers to anticipating return to work situations, making reasonable accommodations, and harassment.

3

OSHA to Exercise Enforcement Discretion for Good Faith Efforts During COVID-19

OSHA released interim guidance regarding evaluating employer’s good faith effort to comply with safety and health standards during the coronavirus pandemic. 

On April 16, 2020, the Occupational Safety and Health Administration (OSHA) released interim guidance for compliance safety and health officers when evaluating an employer’s good faith efforts to comply with safety and health standards during the coronavirus pandemic. The interim guidance is time-limited and in effect only during the current public health crisis.

According to the guidance, current infection control practices may limit the availability of employees, consultants, or contractors who normally provide OSHA training, auditing, equipment inspections, testing, and other essential safety and industrial hygiene services. Business closures and other restrictions may also preclude employee participation in training if trainers are unavailable, and access to medical testing facilities may be limited or suspended. Therefore, during an inspection, compliance safety and health officers are directed to assess an employer’s efforts to comply with standards that require annual or recurring audits, reviews, training, or assessments. For instance, officers are directed to evaluate whether the employer:

  • Explored all options to comply with applicable standards (use of virtual training or remote communication strategies);
  • Implemented interim alternative protections, such as engineering or administrative controls; and
  • Rescheduled required annual activity as soon as possible.

Employers unable to comply with OSHA requirements because local authorities required their workplace to close should demonstrate a good faith attempt to meet applicable requirements as soon as possible following the workplace’s re-opening. Additionally, OSHA will strongly consider an employer’s good faith compliance attempts when determining whether to cite a violation. However, OSHA may issue a citation if it finds an employer cannot demonstrate any efforts to comply. OSHA is also developing a program to conduct monitoring inspections from a randomized sampling of cases where the agency noted, but did not cite, violations. This is to ensure employers have taken corrective actions once normal activities resume.

The guidance took effect on April 16, 2020 and is in effect until further notice.

Read the interim guidance and more on OSHA’s COVID-19 webpage.

 

4

OSHA Recordkeeping Requirements and COVID-19

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

On April 10, 2020, the Occupational Safety and Health Administration (OSHA) issued interim guidance for enforcing its recordkeeping requirements in recording COVID-19 cases. COVID-19 is a recordable illness, and employers are responsible for recording cases of the disease if the case:

In areas where there is ongoing community transmission, employers other than those in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting, and law enforcement services), and correctional institutions may have difficulty making determinations about whether workers who contracted COVID-19 did so due to exposures at work. Accordingly, until further notice, OSHA will not enforce its recordkeeping requirements to require these employers to make work-relatedness determinations for COVID-19 cases, except where:

  • There is objective evidence that a COVID-19 case may be work-related; and
  • The evidence was reasonably available to the employer. Employers of workers in the healthcare industry, emergency response organizations, and correctional institutions must continue to make work-relatedness determinations. 

OSHA’s enforcement policy will provide certainty to the regulated community and help employers focus their response efforts on implementing good hygiene practices in their workplaces and otherwise mitigating COVID-19’s effects.

Read the interim guidance and more on OSHA’s COVID-19 webpage.

5

EEOC Issues Updated Covid-19 Technical Assistance Publication

The frist round of FAQ regarding Covid-19 from the EEOC.

On April 9, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) posted an updated and expanded technical assistance publication addressing questions under the federal equal employment opportunity laws related to the COVID-19 pandemic. The publication, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, expands on a previous publication that focused on the ADA and Rehabilitation Act, and adds responses to common inquiries in the following topics:

  • Disability related inquiries and medical exams;
  • Confidentiality of medical information;
  • Hiring and onboarding;
  • Reasonable accommodation; and
  • Furloughs and layoffs.

The EEOC also provides additional resources related to the pandemic in an employment context.

6

OSHA Reminder that Retaliation for Reporting Unsafe Conditions Prohibited

OSHA’s reminder to employers regarding retaliation against workers reporting unsafe conditions.

On April 8, 2020, the Occupational Safety and Health Administration (OSHA) released a reminder to employers that it is illegal to retaliate against workers when they report unsafe and unhealthful working conditions, including during the coronavirus pandemic. Retaliation may include termination, demotion, denial of overtime or promotion, or reduction in pay or hours.

Under the Occupational Safety and Health Act (OSH Act), employees have the right to safe and healthy workplaces, and any worker who believes that their employer is retaliating against them for reporting unsafe working conditions is instructed to immediately contact OSHA.

Workers may contact OSHA or may file an online whistleblower complaint if they believe their employer has retaliated against them for exercising their rights under the whistleblower protection laws. The OSHA Whistleblower Protection Program webpage provides resources about worker rights, and includes fact sheets on whistleblower protections for employees in various industries along with frequently asked questions.

Read more about OSHA whistleblower protections.

7

DOL Guidance on Federal Pandemic Unemployment Compensation

The DOL’s announcement of Unemployment Insurance Guidance Letter. 

On April 4, 2020, the U.S. Department of Labor announced publication of its Unemployment Insurance Guidance Letter 15-20 (UIPL 15-20) providing guidance to states for Federal Pandemic Unemployment Compensation (FPUC). Under FPUC, states will administer an additional $600 weekly payment to certain eligible individuals who are receiving other benefits. This provision is contained in § 2104 of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) enacted on March 27, 2020.

The program allows states to provide an additional $600 per week benefit to individuals who are collecting regular unemployment compensation, including Unemployment Compensation for Federal Employees (UCFE) and Unemployment Compensation for Ex-Servicemembers (UCX), as well as the following unemployment compensation programs: 

  • Pandemic Emergency Unemployment Compensation (PEUC);
  • Pandemic Unemployment Assistance (PUA);
  • Extended Benefits (EB);
  • Short­Time Compensation (STC);
  • Trade Readjustment Allowances (TRA);
  • Disaster Unemployment Assistance (DUA); and
  • Payments under the Self-Employment Assistance (SEA) program.

FPUC benefit payments are fully federally funded.

The benefit payments under FPUC may begin as soon as the week after the execution of a signed agreement between the Department of Labor and states. The timeline for these payments will vary by state. As states begin providing this payment, eligible individuals will receive retroactive payments back to their date of eligibility or the signing of the state agreement, whichever came later. All states have executed agreements with the department as of March 28, 2020. The CARES Act specifies that FPUC benefit payments will end after payments for the last week of unemployment before July 31, 2020.

The guidance letter also includes guidance about protecting unemployment insurance program integrity, as the provisions in the CARES Act operate in tandem with the fundamental eligibility requirements of the federal-state UI program. The department is working with states receiving funding under the act to provide unemployment insurance benefits to those who are entitled to them.

Read the announcement.

8

Temporary Rule: Paid Leave under the Families First Coronavirus Response Act

New actions and protections under the DOL regarding the FFCRA. 

On April 1, 2020, the U.S. Department of Labor announced new action regarding the protections and relief offered by the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act, both part of the Families First Coronavirus Response Act (FFCRA). The FFCRA reimburses private employers with fewer than 500 employees with tax credits for the cost of providing employees with paid leave taken for specified reasons related to COVID-19.

The Department’s Wage and Hour Division (WHD) posted a temporary rule issuing regulations pursuant to this new law, effective April 1, 2020. The regulations implement public health emergency leave under Title I of the Family and Medical Leave Act (FMLA) and emergency paid sick leave to assist working families facing public health emergencies arising out of the COVID-19 global pandemic. The leave provisions are created by a time-limited statutory authority established under the FFCRA and are set to expire on December 31, 2020. The temporary rule is effective from April 1, 2020 through December 31, 2020. 

In this temporary rule, the department:

  • Issues rules relevant to the administration of the FFCRA’s paid leave requirements.
  • Provides direction for administration of the Emergency Paid Sick Leave Act (EPSLA), which requires that certain employers provide up to 80 hours of paid sick leave to employees who need to take leave from work for certain specified reasons related to COVID-19. These reasons may include the following:
    • The employee or someone the employee is caring for is subject to a government quarantine order or has been advised by a health care provider to self-quarantine;
    • The employee is experiencing COVID-19 symptoms and is seeking medical attention; or,
    • The employee is caring for their son or daughter whose school or place of care is closed or whose childcare provider is unavailable for reasons related to COVID-19.
  • Provides direction for administration of the Emergency Family and Medical Leave Expansion Act (EFMLEA), which requires that certain employers provide up to 10 weeks of paid, and two weeks unpaid, emergency family and medical leave to eligible employees if the employee is caring for their son or daughter whose school or place of care is closed or whose childcare provider is unavailable for reasons related to COVID-19.

Read more here and here.

9

COVID-19 and Employee Retention Credit

Information regarding a Refundable tax credit of 50% of up to $10,000 in wages. 

On March 31, 2020, the U.S. Treasury Department and the Internal Revenue Service launched the Employee Retention Credit. The refundable tax credit is 50 percent of up to $10,000 in wages paid by an eligible employer whose business has been financially impacted by COVID-19. The credit is available to all employers regardless of size, including tax-exempt organizations, with the following two exceptions:

  • State and local governments and their instrumentalities; and
  • Small businesses who take small business loans.

Qualifying employers must fall into one of the following categories, which are calculated each calendar quarter:

  • The employer’s business is fully or partially suspended by government order due to COVID-19 during the calendar quarter.
  • The employer’s gross receipts are below 50 percent of the comparable quarter in 2019. Once the employer’s gross receipts go above 80 percent of a comparable quarter in 2019, they no longer qualify after the end of that quarter.

In calculating the credit, the amount of the credit is 50 percent of qualifying wages paid up to $10,000 in total. Wages paid after March 12, 2020, and before January 1, 2021, are eligible for the credit. Wages considered for the credit are not limited to cash payments, but also include a portion of the cost of employer provided health care.

Qualifying wages are based on the average number of a business’s employees in 2019 as follows:

  • If the employer had 100 or fewer employees on average in 2019, the credit is based on wages paid to all employees, regardless if they worked or not. If the employees worked full-time and were paid for full-time work, then the employer still receives the credit.
  • If the employer had more than 100 employees on average in 2019, then the credit is allowed only for wages paid to employees who did not work during the calendar quarter.

Employers may be immediately reimbursed for the credit by reducing their required deposits of payroll taxes that have been withheld from their employees’ wages by the amount of the credit. Eligible employers will report their total qualified wages and the related health insurance costs for each quarter on their quarterly employment tax returns, or Form 941, beginning with the second quarter. If the employer’s employment tax deposits are not sufficient to cover the credit, the employer may receive an advance payment from the IRS by submitting Form 7200, Advance Payment of Employer Credits Due to COVID-19. Form 7200 may also be used by eligible employers to request an advance of the Employee Retention Credit.

Read more here.

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What Does Emergency Coronavirus Bill Mean For Employers

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FFCRA Updates:

On Friday, March 20, the U.S. Treasury, IRS, and U.S. Department of Labor announced their plans for making the paid leave provisions in the Families First Coronavirus Response Act (FFCRA) less burdensome for small businesses. Key points include:

  • To take immediate advantage of the paid leave credits, businesses can retain and access funds that they would otherwise pay to the IRS in payroll taxes. If those amounts are not sufficient to cover the cost of paid leave, employers can seek an expedited advance from the IRS by submitting a streamlined claim form that will be released next week.
  • The Department of Labor will release “simple and clear” criteria for businesses with fewer than 50 employees to apply for exemptions from the leave provisions related to school and childcare closures; and
  • There will be a 30-day non-enforcement period for businesses making a reasonable effort.

 

Business slowdowns related to the spread of COVID-19 have made it hard to imagine how they could bear any additional expenses. We encourage anyone with these concerns to read the full announcement.

Emergency Coronavirus Bill Signed Into Law March 18, 2020

About H.R. 6201 Division D-F | Emergency Paid Leave Act of 2020

H.R 6201 legislation provides paid leave, establishes free testing, protects public health workers, and provides important benefits to children and families.

President Trump was quick to finalize the Emergency Coronavirus Bill, H.R.6201 – Families First Coronavirus Response Act this evening, March 18, 2020 after the revised proposed bill made it through the Senate. Passed quickly through the House of Representatives on March 14, the Nation has been anxiously awaiting to see what this bill will mean for businesses and their staff. H.R.6201 will go into effect on April 2, 2020 and will date out on December 31, 2020.

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Many small businesses fear the impact this could have on their financials at an already uncertain time. Under the bill, many employers will have to provide 80 hours of paid-sick-leave benefits for several reasons including:

• If the employee has been ordered to quarantine or isolate or has been advised by a health care provider to self-quarantine because of COVID-19.

• If Employees use paid sick leave if they have symptoms of COVID-19 and are seeking a medical diagnosis,

• If they are caring for a relative who is in quarantine or isolation.

• Or if their child’s school or child care service is closed because of the public health emergency.

The first 10 days of emergency FMLA leave may consist of unpaid leave, but the employee MUST BE PAID for each day of leave after. Paid-sick-leave benefits will be immediately available when the law takes effect and capped at $511 a day for a worker’s own care and $200 a day when the employee is caring for someone else. This benefit will also expire at the end of 2020.

Exemptions to the Family First Coronavirus Act

Employers that are required to offer emergency FMLA or paid sick leave will be eligible for refundable tax credits. 

• Employers with fewer than 50 workers can apply for an exemption from providing paid family and medical leave and paid sick leave if it “would jeopardize the viability of the business.”

• Gig-workers and other self-employed workers will be eligible for a tax credit to cover the benefits.

• Private businesses with more than 500 employees are not covered by the bill.

Work From Home Sample Policies, Official Workplace Posters, CDC information and much more. A Free Resource from tryHRIS. 

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What Should Employers Do to Prepare for H.R. 6201?

Employers Are Urged to Review Their Sick Leave Policies in Depth

Do employees have the right to take time off if they are worried about contracting coronavirus? Can employers take temperatures before allowing workers in? Is it fair to allow some to work from home and not others? What happens if we have to pay everyone but only half the workforce is able to work remotely?

HR and other business leaders are likely considering these questions and many others  as COVID-19 makes its way through the United States.

What About the Government Small Business Loans?

H.R 6201 is sure to kick off the release of new funds into the Small Business funding programs currently making their way through government.

As of now the areas with small business loans available include: 

State of California # 16332

State of Connecticut # 16335

Contiguous Counties:

MASSACHUSETTS:
Berkshire, Hampden, Worcester.

NEW YORK
Dutchess, Putnam, Westchester.

District of Columbia

Contiguous Counties:

MARYLAND:
Montgomery, Prince Georges.

VIRGINIA:
Alexandria City, Arlington, Fairfax.

State of Maine 

Contiguous Counties:

NEW HAMPSHIRE:
Carroll, Rockingham, Strafford.

State of Montana

Contiguous Counties:

IDAHO:
Clearwater, Fremont, Idaho.

NORTH DAKOTA:
Divide, Williams.
 
WYOMING:
Park, Teton.

State of Nevada # 16341

Contiguous Counties:

ARIZONA:
Mohave.

 
IDAHO:
Cassia, Owyhee, Twin Falls.
 
OREGON:
Harney, Lake.

State of New Mexico

Contiguous Counties:

ARIZONA
Apache, Greenlee.

 
COLORADO:
Archuleta, Costilla, La Plata, Las Animas, Montezuma.
 
TEXAS:
Andrews, Cochran, Deaf Smith, El Paso, Gaines, Hartley, Loving, Oldham, Winkler, Yoakum.

State of Rhode Island

Contiguous Counties:

CONNECTICUT:
New London, Windham.

 
MASSACHUSETTS:
Bristol, Norfolk, Worcester.

State of Utah # 16338

Contiguous Counties:

ARIZONA:
Apache, Coconino, Mohave, Navajo.

COLORADO
Dolores, Mesa, Montezuma, Montrose, San Miguel.

WYOMING
Sweetwater, Uinta.

Washington State # 16333

Contiguous Counties:

IDAHO
Benewah, Latah, Nez Perce.

OREGON
Gilliam, Hood River, Morrow, Sherman, Umatilla, Wasco.

For continued updates and to see if your area has been added to the list visit the SBA.gov.

Doing Our Part to Assist Employers in Crisis.

Compliance can weigh down even the most experienced professionals, especially during times such as these. This is why we are offering small businesses 14 days at no cost to use our services and speak directly with seasoned HR Advisors prepared to answer all of their Coronavirus questions. 

Our HR Advisors, one click compliance Handbook, Compliance Database, HR Tools and Remote Employee Training are ready to help navigate HR through this Coronavirus crisis and all year long. 

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