Category: Virginia

Employment Law Updates: April 2021

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Employment Law Updates: April 2021

Three Federal, along with D.C., and ten State Law Updates have been issued this month.  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 Labor Law Updates for April 2021

1

Employer Tax Credits, American Rescue Plan, and Paid Leave for Employees to Get Vaccinated

On April 21, 2021, the Internal Revenue Service (IRS) released a fact sheet about the American Rescue Plan Act of 2021 (ARP), employers that are eligible for tax credits for the paid leave granted to employees for COVID-19 vaccinations, and how to claim them. The ARP allows small and midsize employers to claim refundable tax credits that reimburse them for the cost of providing paid sick and family leave to their employees due to COVID-19, including leave taken by employees to receive or recover from COVID-19 vaccinations.

The ARP tax credits are available to eligible employers that pay sick and family leave for leave from April 1, 2021, through September 30, 2021.

Tax Credits and Paid Sick and Family Leave

Eligible employers are entitled to tax credits for wages paid for leave taken by employees who are not able to work or telework due to reasons related to COVID-19, including leave taken to receive COVID–19 vaccinations or to recover from any injury, disability, illness or condition related to the vaccinations. These tax credits are available for wages paid for leave from April 1, 2021, through September 30, 2021.

Tax Credit Amount and Calculation

The paid leave credits under the ARP are tax credits against the employer’s share of the Medicare tax. The tax credits are refundable, which means that the employer is entitled to payment of the full amount of the credits if it exceeds the employer’s share of the Medicare tax.

The tax credit for paid sick leave wages is equal to the sick leave wages paid for COVID-19 related reasons for up to two weeks (80 hours), limited to $511 per day and $5,110 in the aggregate, at 100 percent of the employee’s regular rate of pay.  The tax credit for paid family leave wages is equal to the family leave wages paid for up to twelve weeks, limited to $200 per day and $12,000 in the aggregate, at 2/3rds of the employee’s regular rate of pay.

The amount of these tax credits is increased by allocable health plan expenses and contributions for certain collectively bargained benefits, as well as the employer’s share of social security and Medicare taxes paid on the wages (up to the respective daily and total caps).

Claiming the Credit

Eligible employers may claim tax credits for sick and family leave paid to employees, including leave taken to receive or recover from COVID-19 vaccinations, for leave from April 1, 2021, through September 30, 2021.

Eligible employers report their total paid sick and family leave wages (plus the eligible health plan expenses and collectively bargained contributions and the eligible employer’s share of social security and Medicare taxes on the paid leave wages) for each quarter on their federal employment tax return, usually Form 941, Employer’s Quarterly Federal Tax Return  Form 941 is used by most employers to report income tax and social security and Medicare taxes withheld from employee wages, as well as the employer’s own share of social security and Medicare taxes.

In anticipation of claiming the credits on the Form 941, eligible employers can keep the federal employment taxes that they otherwise would have deposited, including federal income tax withheld from employees, the employees’ share of social security and Medicare taxes and the eligible employer’s share of social security and Medicare taxes with respect to all employees up to the amount of credit for which they are eligible. The Form 941 instructions explain how to reflect the reduced liabilities for the quarter related to the deposit schedule.

If an eligible employer does not have enough federal employment taxes set aside for deposit to cover amounts provided as paid sick and family leave wages (plus the eligible health plan expenses and collectively bargained contributions and the eligible employer’s share of social security and Medicare taxes on the paid leave wages), the eligible employer may request an advance of the credits by filing Form 7200, Advance Payment of Employer Credits Due to COVID-19. The eligible employer will account for the amounts received as an advance when it files its Form 941, Employer’s Quarterly Federal Tax Return, for the relevant quarter.

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2

EBISA Releases Cybersecurity Guidance

On April 14, 2021, the U.S. Department of Labor (DOL) announced the following new guidance for plan sponsors, plan fiduciaries, recordkeepers and plan participants on best practices for maintaining cybersecurity:


This is the first time the DOL’s Employee Benefits Security Administration has issued cybersecurity guidance and it is designed for use by plan sponsors and fiduciaries regulated by the Employee Retirement Income Security Act, plan participants, and beneficiaries.

3

COBRA Premium Assistance FAQs and the American Rescue Plan Act of 2021

On April 7, 2021, the U.S. Department of Labor’s (DOL), Employee Benefits Security Administration (EBSA) released frequently asked questions (FAQs) addressing how certain provisions of the American Rescue Plan Act of 2021 (ARP) apply to the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA). The FAQs provide answers to general questions, inquiries about premiums, notices, and more.

More information is provided on the COBRA Premium Subsidy website and EBSA also released the following model notices:


COBRA continuation coverage provides certain group health plan continuation coverage rights for participants and beneficiaries covered by a group health plan. In general, under COBRA, an individual who was covered by a group health plan on the day before the occurrence of a qualifying event (such as getting fired or a reduction in hours that causes loss of coverage under the plan) may be able to elect COBRA continuation coverage when that qualifying event occurs. These individuals are referred to as qualified beneficiaries. Under COBRA, group health plans must provide covered employees and their families with certain notices explaining their COBRA rights.

Section 9501 of the ARP provides for COBRA premium assistance to help assistance eligible individuals continue their health benefits. The premium assistance is also available for continuation coverage under certain state laws. Assistance eligible individuals are not required to pay their COBRA continuation coverage premiums. The premium assistance applies to periods of health coverage on or after April 1, 2021 through September 30, 2021. An employer or plan to whom COBRA premiums are payable is entitled to a tax credit for the amount of the premium assistance.

The DOL also provides more information about the COBRA Premium Subsidy on its website.

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Individual state labor laws

State Specific Labor Law Updates:

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Employment Law Updates: March 2021

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Employment Law Updates: March 2021

Five Federal and ten 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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Federal Law Alerts for March 2021

1

Tipped Employee Final Rule in Flux

The Tip Regulations Under the Fair Labor Standards Act (FLSA) final rule (2020 Tip final rule) was published on December 30, 2020, with an effective date of March 1, 2021; however:
  • On February 26, 2021, the DOL issued a final rule delaying the effective date until April 30, 2021; and
  • On March 23, 2021, the Department announced two Notices of Proposed Rulemaking (NPRMs) for tipped workers as the effective date of the 2020 Tip final rule nears:
    • Tip Regulations Under the Fair Labor Standards Act (FLSA); Delay of Effective Date, which proposes to further extend, until December 31, 2021, the effective date of two portions of the 2020 Tip final rule related to the assessment of civil money penalties (CMPs) under the FLSA, and the portion addressing the FLSA tip credit’s application to tipped employees who perform tipped and non-tipped duties. The Department invites public comments on this NPRM for twenty (20) days following publication of the NPRM in the Federal Register (from March 25, 2021 through April 14, 2021).
    • Tip Regulations under the Fair Labor Standards Act (FLSA); Partial Withdrawal, which proposes to withdraw and re-propose the two portions of the 2020 Tip final rule addressing CMP assessments. This NPRM also seeks comments on whether to revise one other portion of the 2020 Tip final rule (addressing managers and supervisors who cannot keep employee’s tips) and asks how it might improve the recordkeeping requirements in the 2020 Tip final rule in a future rulemaking. The Department invites public comments on this NPRM for sixty (60) days following publication of the NPRM in the Federal Register (from March 25, 2021 through May 24, 2021).

However, the following portions of the final rule will continue to take effect on April 30, 2021:
  • Employers that do not take a tip credit may implement mandatory “nontraditional” tip pools, which are tip pools that include employees who do not customarily and regularly receive tips;
  • New recordkeeping requirement for employers that do not take a tip credit but collect employees’ tips to operate a mandatory tip pool; and
  • Employers, regardless of whether they take a tip credit, are prohibited from keeping employees’ tips for any reason, which includes prohibiting managers and supervisors from keeping tips received by employees.

Read more about the final rule on the DOL’s website.

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2

OSHA Updated Interim Enforcement Response Plan for COVID-19

On March 12, 2021, the Occupational Safety and Health Administration (OSHA) released an Updated Interim Enforcement Response Plan for COVID-19 which provides new instructions and guidance about how it will handle COVID-19-related complaints, referrals, and severe illness reports, summarized as follows:

  • OSHA will continue to implement the Department of Labor’s (DOL) COVID-19 Workplace Safety Plan to reduce the risk of COVID-19 transmission to OSHA Compliance Safety and Health Officers (CSHOs) during inspections.
  • Pursuant to the March 12, 2021 National Emphasis Program (NEP) for COVID-19, OSHA will prioritize COVID-19-related inspections involving deaths or multiple hospitalizations because of occupational exposures to COVID-19. The NEP also protects against worker retaliation.
  • OSHA will perform the following types of workplace inspections, generally on-site:
    • OSHA identifies exposures to COVID-19 hazards, ensures that appropriate control measures are implemented, and addresses violations of OSHA standards and its General Duty Clause.
    • OSHA will sometimes use phone and video conferencing, instead of face-to-face employee interviews, to reduce potential exposures to CSHOs. In-person interviews will be conducted when necessary and safe.
    • OSHA will minimize in-person meetings with employers and encourage employers to provide documents and other data electronically to CSHOs.
    • Area Directors (AD) will ensure that CSHOs are prepared and equipped with the appropriate precautions and personal protective equipment (PPE) when performing on-site inspections related to COVID-19 and throughout the pandemic.
    • All inspections will generally be done so that COVID-19-related citations, and their abatement, are done quickly.
  • If on-site inspections cannot safely be performed (for example, if the only available CSHO has reported a medical contraindication), the AD will approve remote-only inspections that may be conducted safely.


This plan revokes the administration’s May 19, 2020 plan, remains in effect until further notice, and is intended to be time-limited to the current COVID-19 public health crisis. OSHA’s webpage will have updates about this plan and more.

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3

2019 and 2020 EEO-1 Reporting to Open at End of April 2021

On March 12, 2021, the U.S. Equal Employment Opportunity (EEOC) announced that the EEO-1 Component 1 data collection for 2019 and 2020 will open at the end of April 2021 and close in July 2021. Filers should begin preparing to submit data in anticipation of the April 2021 opening. The exact closing date will be posted when the data collection launches. Employers will be notified of additional details and how to access the online filing system in April. Read more on the EEOC’s employer EEO-1 Data Collection website.

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4

American Rescue Plan Act - Extension of EPSL and EFMLA and New COBRA Subsidies

On March 11, 2021, President Joe Biden signed the American Rescue Plan Act of 2021 (HR 1319) (ARPA) to address the ongoing economic impacts of COVID-19. The portions of the act that directly affect HR functions are discussed below.

Optional Extension of Sick and Family Leaves

Part of the ARPA is an extension of the current tax credit scheme for Emergency Paid Sick Leave (EPSL) and Emergency Family and Medical Leave (EFMLA) under the Families First Coronavirus Response Act (FFCRA). The FFCRA required many employers to provide EPSL and EFMLA in 2020, but became optional when it was previously extended to cover January 1 through March 31, 2021.

The new extension under the ARPA takes effect April 1, 2021 through September 30, 2021 and, similar to the current version, remains optional. In addition, tax credits are available but only to employers with fewer than 500 employees and up to certain caps. To receive the tax credit, employers are required to follow the FFCRA’s original provisions. For example, they cannot deny EPSL or EFMLA to an employee if they’re otherwise eligible, cannot terminate them for taking EPSL or EFMLA, and must continue their health insurance during these leaves.

Emergency Paid Sick Leave (EPSL) Changes

Key changes to EPSL, effective from April 1 through September 30, 2021, are:

  • Employees may take EPSL to get the COVID vaccine and recover from any related side effects.
  • Employees may take EPSL when seeking or waiting for a COVID-19 diagnosis or test result if they’ve been exposed to the virus or if their employer required a diagnosis or test.
  • Employees will be eligible for a new bank of leave on April 1. Full-time employees are entitled to 80 hours and part-time employees are entitled to a prorated amount. Unused hours from before April 1 will not carryover.
  • Employers cannot provide EPSL in a manner that favors highly compensated employees or full-time employees or that discriminates based on how long employees have worked for the employer (tenure). This is discriminatory and will disqualify the employer from receiving the tax credit. Failing to comply with the FFCRA (including its antiretaliation provisions) also disqualifies employers from receiving the tax credit.

 

Emergency Family and Medical Leave (EFMLA) Changes

Key changes to EFMLA, in effect from April 1 through September 30, 2021, are:

  • EFMLA may be used for any EPSL reason, in addition to the original childcare reasons. This includes the two new EPSL reasons noted above (vaccination and diagnosis/test results).
  • The 10-day unpaid waiting period was eliminated.
  • The cap on the reimbursable tax credit for EFMLA was increased to $12,000 (from $10,000). This applies to all EFMLA taken by an employee beginning April 1, 2020. This change accounts for the additional 10 days of paid time off; however, the daily cap of $200 remains the same.
  • Employers cannot provide EFMLA in a manner that favors highly compensated employees or full-time employees or that is based on how long employees have worked for the employer.

 

Reasons for Using EPSL and EFMLA

Starting on April 1, employees may take EPSL or EFMLA under the same conditions, which are:

  • When quarantined or isolated subject to federal, state, or local quarantine or isolation order.
  • When advised by a health care provider to self-quarantine because of COVID-19.
  • When the employee is:
    1. Experiencing symptoms of COVID-19 and seeking a medical diagnosis;
    2. Seeking or awaiting the results of a diagnostic test for, or a medical diagnosis of, COVID-19 because they have been exposed or their employer requested the test or diagnosis; or
    3. Obtaining a COVID-19 vaccination or recovering from any injury, disability, illness, or condition related to the vaccination.
  • When caring for another person who is isolating or quarantining due to government or doctor’s orders.
  • When caring for a child whose school or place of care is closed due to COVID-19.


Tax Credit Review

The tax credits available between April 1 and September 30 are the same as under the original FFCRA, except for the increased aggregate cap for EFMLA. Regardless of how much EPSL or EFMLA an employee used prior to April 1, the available tax credits are as follows:

  • The credit available for EPSL when used for reasons 1, 2, or 3 (self-care) is up to 100 percent of their regular pay, with a limit of $511 per day.
  • The credit available for EPSL when used for reasons 4 or 5 (care for another) is up to 2/3 of their regular rate of pay, with a limit of $200 per day.
  • The credit available for EFMLA for any reason is up to 2/3 of their regular pay, with a limit of $200 per day and a cap of $12,000 per employee.


Employers may also claim a credit for their share of Medicare tax on the employee’s wages and the cost of maintaining the employee’s health insurance (qualified health plan expenses) during their absence.

COBRA Subsidies 

ARPA provides a 100 percent COBRA subsidy if the employee’s work reduction or termination was involuntary. The subsidy applies for up to six months of coverage from April 2021 through September 2021 (unless the individual’s maximum COBRA period expires earlier). For group plans subject to the federal COBRA rules, the employer will be required to pay the COBRA premium but will be reimbursed through a refundable payroll tax credit.

Employers with fewer than 20 workers usually are exempt from the federal COBRA rules, but their group medical insurance plans may be subject to a state’s mini-COBRA law. In that case, it appears the subsidy will be administered by the carrier. The carrier will pay the premium and then be reimbursed by the government.

Employers will need to work with their group health plan carriers and vendors on how to administer the new subsidy provision. Although it takes effect April 1, 2021, employees who were terminated earlier but are still in their COBRA election window also are included. Federal guidance is expected to be released by April 10, including model notices that plans may use.

Note: The COBRA subsidy does not apply during FFCRA leaves because employees are entitled to maintain their health insurance during those leaves on the same terms as though they continued working.

Additional Information

The White House has a website dedicated to the American Rescue Plan, and according to the IRS, it is “reviewing implementation plans for the American Rescue Plan Act of 2021. Additional information about a new round of Economic Impact Payments, the expanded Child Tax Credit, including advance payments of the Child Tax Credit, and other tax provisions will be made available as soon as possible on IRS.gov. The IRS strongly urges taxpayers to not file amended returns related to the new legislative provisions or take other unnecessary steps at this time.”

“The IRS will provide taxpayers with additional guidance on those provisions that could affect their 2020 tax return, including the retroactive provision that makes the first $10,200 of 2020 unemployment benefits nontaxable. For those who haven’t filed yet, the IRS will provide a worksheet for paper filers and work with software industry to update current tax software so that taxpayers can determine how to report their unemployment income on their 2020 tax return. For those who received unemployment benefits last year and have already filed their 2020 tax return, the IRS emphasizes they should not file an amended return at this time, until the IRS issues additional guidance.”

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5

CDC Guidance for Fully Vaccinated

On March 8, 2021, the Centers for Disease Control and Prevention (CDC) released its first Interim Public Health Recommendations for Fully Vaccinated People guidance under which fully vaccinated people can:

  • Visit with other fully vaccinated people indoors without wearing masks or physical distancing.
  • Visit with unvaccinated people from a single household who are at low risk for severe COVID-19 disease indoors without wearing masks or physical distancing.
  • Refrain from quarantine and testing following a known exposure if asymptomatic.

 

However, the CDC recommends that fully vaccinated people should continue to:

  • Take precautions in public like wearing a well-fitted mask and physical distancing.
  • Wear masks, practice physical distancing, and adhere to other prevention measures when visiting with unvaccinated people who are at increased risk for severe COVID-19 disease, including household members.
  • Wear masks, maintain physical distance, and practice other prevention measures when visiting with unvaccinated people from multiple households.
  • Avoid medium- and large-sized in-person gatherings.
  • Get tested if experiencing COVID-19 symptoms.
  • Follow guidance issued by individual employers.
  • Follow CDC and health department travel requirements and recommendations.

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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: August 2020

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Federal & State Employment Law Updates: August 2020

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

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August 2020 Law Alert Map

Labor Law Updates for August 2020

1

Telework and Work Hours

Guidance addressing employers obligation to track teleworking employees compensable hours.

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

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

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

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

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

2

Form I-9 Compliance Flexibility Extended to September 19

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

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

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

3

ADA and Opioid Abuse

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

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

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

4

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

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

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

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

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

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Individual State Labor Laws

State Specific Labor Law Updates:

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July 2020 Federal Employment Law Updates

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Federal & State Employment Law Updates: July 2020

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

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July Law Updates

Labor Law Updates for July 2020

1

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

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

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

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

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

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

2

Form I-9 Flexibility Extended Due to COVID-19

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

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

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

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

3

DOL Guidance as Workplaces Reopen During COVID-19

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

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

These materials include the following:

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

4

FMLA Forms Updated

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

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

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

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

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

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

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

5

SCOTUS Opinions, Religion, and the Workplace

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

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

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

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

6

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

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

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

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

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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

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

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Previous Labor Laws & Information

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