Category: Washington

Employment Law Updates: March 2022

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Employment Law Updates: March 2022

Four Federal and six 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:

1

Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act

On March 3, 2022, President Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (HR 4445). The act amends the Federal Arbitration Act by allowing employees subject to pre-dispute mandatory arbitration agreements to pursue their claims related to sexual assault or sexual harassment in court. The law also allows workers to choose how to pursue their cases after sexual assault or harassment has occurred.

According to the White House press briefing, “[t]his law will affect the more than 60 million workers who are subject to mandatory arbitration clauses in the workplace, often without realizing it until they come forward with a claim against their employer. President Biden has long spoken against forced arbitration clauses in employment contracts, and today marks an important milestone in empowering survivors of sexual assault and sexual harassment and protecting employee rights.”

The White House also live broadcasted the signing and the Chair of the U.S. Equal Employment Opportunity Commission (EEOC) also released a statement about the act.

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2

HSA Telehealth Relief Extended Under Appropriations Act

On March 15, 2022, President Biden signed the Consolidated Appropriations Act, 2022 (HR 2471)(CAA 2022) with a provision that temporarily allows high deductible health plans (HDHP) to cover telemedicine services without a deductible from April 1, 2022, through December 31, 2022, and without health savings account (HSA) eligibility disruption. This is essentially an extension of the CARES Act provisions that expired on December 31, 2021, with a gap for calendar year plans from January 2022 through March 2022 when the standard deductible applies.

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3

New DOL Employer Resources to Prevent Retaliation

On March 10, 2022, the U.S. Department of Labor published the following new resources to assist in preventing retaliation against employees who assert their workplace rights or cooperate with Wage and Hour Division (WHD) investigations:
Employers cannot retaliate against a worker for exercising their rights. Retaliation happens when an employer (through a manager, supervisor, administrator, or directly) fires an employee or takes any other type of adverse action against them for engaging in protected activity. An adverse action is an action that would discourage a reasonable employee from bringing up their concerns about a possible violation of their rights or discourage them from taking part in other related protected activity. Retaliation can have a negative impact on overall employee morale.

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4

Updated EEOC Guidance on Religious Accommodations and Vaccines

On March 1, 2022, the federal Equal Employment Opportunity Commission (EEOC) updated section L of its COVID-19 guidance about vaccinations and Title VII religious objections to COVID-19 vaccine requirements.

The EEOC enforces Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on religion. This includes a right for job applicants and employees to request an exception, called a religious or reasonable accommodation, from an employer requirement that conflicts with their sincerely held religious beliefs, practices, or observances. If an employer shows that it cannot reasonably accommodate an employee’s religious beliefs, practices, or observances without undue hardship on its operations, then they are not required to grant the accommodation. Read more about Section 12: Religious Discrimination and EEOC Guidelines on Discrimination Because of Religion.

Although other laws, such as the Religious Freedom Restoration Act, also may protect religious freedom in some circumstances, the EEOC’s guidance only describes employment rights and obligations under Title VII and specifically addresses:

  • That employees with a religious objection to getting the COVID-19 vaccine must tell their employer about it—when requesting an accommodation from getting it—and how.
  • That generally, employers should accept an employee’s assertion of their religious at face value but could make a factual inquiry for additional supporting information if it questions it.
  • How an employer shows that it would be an “undue hardship” to accommodate an employee’s request for religious accommodation.
  • When an employer grants some employees a religious accommodation from a COVID- 19 vaccination requirement because of their sincerely held religious beliefs, practices, or observances, it is not required to grant all such requests.
  • When there is more than one reasonable accommodation that would effectively resolve the conflict between the vaccination requirement and the employee’s sincerely held belief, etc., that an employer may choose which accommodation to offer.
  • The obligation to provide religious accommodations absent undue hardship and that it is a continuing obligation that allows for changing circumstances.

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State Specific Labor Law Updates:

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Employment Law Updates: January 2022

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Employment Law Updates: January 2022

Five Federal and eighteen 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.

Download All Updates

Federal Labor Law Updates:

1

2021 EEO-1 Component 1 Data Collection Tentatively Opens on April 12, 2022

The 2021 EEO-1 Component 1 data collection is tentatively scheduled to open on Tuesday, April 12th, 2022. The tentative deadline to file the 2021 EEO-1 Component 1 Report
is Tuesday, May 17th, 2022. Updates regarding the 2021 EEO-1 Component 1 data collection will be posted on this website as they become available.

Additionally, the Equal Employment Opportunity Commission (EEOC) is discontinuing the EEO-1 Component 1 Type 6 Establishment List Report for reporting establishments with fewer than 50 employees. Beginning with the 2021 EEO-1 Component 1 data collection, all filers reporting data for establishments with fewer than 50 employees must use a Type 8 Establishment Report to submit their data.

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2

COVID and ADA

The Justice Department updated its Common Questions About COVID and the ADA to address the following COVID-era issues affecting people with disabilities:

Medical facilities’ visitor policies must account for the rights of people with disabilities to receive equal access to care; and outdoor retail or dining spaces (sometimes called “streateries”) must be accessible to people with disabilities and not prevent their use of sidewalks and accessible parking.

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3

COVID-19 FAQs and Mandatory Coverage for Free OTC At-Home Tests by January 15, 2022

On January 10, 2022, the U.S. Department of Labor’s Employee Benefits Security Administration (EBSA) posted its FAQs regarding implementation of the Families First Coronavirus Response Act (FFCRA), the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), and the Affordable Care Act. These FAQs were prepared jointly by the Departments of Labor, Health and Human Services, and the Treasury and—like previously issued FAQs here and here—answer questions about the laws and legal compliance.

Importantly, the new FAQs discuss the Biden-Harris administration’s requirement that insurance companies and group health plans cover the cost of over-the-counter (OTC), at- home COVID-19 tests, so people with private health coverage can get them for free starting January 15th. According to the Centers for Medicare and Medicaid Services, this new coverage requirement means that most consumers with private health coverage can go online or to a pharmacy or store, buy a test, and either get it paid for up front by their health plan, or get reimbursed for the cost by submitting a claim to their plan. This requirement incentivizes insurers to cover these costs up front and ensures individuals do not need an order from their health care provider to access these tests for free.

Beginning January 15, 2022, individuals with private health insurance coverage or covered by a group health plan who purchase an over-the-counter COVID-19 diagnostic test authorized, cleared, or approved by the U.S. Food and Drug Administration (FDA) will be able to have those test costs covered by their plan or insurance. Insurance companies and health plans are required to cover eight free over-the-counter at-home tests per covered individual per month. That means a family of four, all on the same plan, would be able to get up to 32 of these tests covered by their health plan per month. There is no limit on the number of tests, including at-home tests, that are covered if ordered or administered by a health care provider following an individualized clinical assessment, including for those who may need them due to underlying medical conditions.

Over-the-counter test purchases will be covered in the commercial market without the need for a health care provider’s order or individualized clinical assessment, and without any cost-sharing requirements such as deductibles, co-payments or coinsurance, prior authorization, or other medical management requirements.

As part of the requirement, the Administration is incentivizing insurers and group health plans to set up programs that allow people to get the over-the-counter tests directly through preferred pharmacies, retailers or other entities with no out-of-pocket
costs. Insurers and plans would cover the costs upfront, eliminating the need for consumers to submit a claim for reimbursement. When plans and insurers make tests available for upfront coverage through preferred pharmacies or retailers, they are still required to reimburse tests purchased by consumers outside of that network, at a rate of up to $12 per individual test (or the cost of the test, if less than $12). For example, if an individual has a plan that offers direct coverage through their preferred pharmacy but that individual instead purchases tests through an online retailer, the plan is still required to reimburse them up to $12 per individual test. Consumers can find out more information from their plan about how their plan or insurer will cover over-the-counter tests.

State Medicaid and Children’s Health Insurance Program (CHIP) programs are currently required to cover FDA-authorized at-home COVID-19 tests without cost-sharing. In 2021, the Biden-Harris Administration issued guidance explaining that State Medicaid and Children’s Health Insurance Program (CHIP) programs must cover all types of FDA- authorized COVID-19 tests without cost sharing under CMS’s interpretation of the American Rescue Plan Act of 2019 (ARP). Medicare pays for COVID-19 diagnostic tests performed by a laboratory, such as PCR and antigen tests, with no beneficiary cost sharing when the test is ordered by a physician, non-physician practitioner, pharmacist, or other authorized health care professional.

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4

Supreme Court Halts OSHA ETS

The United States Supreme Court has halted the OSHA vaccine-or-test Emergency Temporary Standard (ETS). As a result, covered employers (those with 100 or more employees) are not currently required to comply with the ETS.

Employers should continue to comply with all other federal, state, and local requirements— this ruling only affects the OSHA ETS. If you’re in a state with an OSHA State Plan,
you should continue to keep an eye out for state OSHA requirements.

The Supreme Court ruling was limited to whether the stay should be put back in place. The case now returns to the Sixth Circuit Court of Appeals to determine whether the ETS is beyond OSHA’s authority. Based on the reasoning of the Supreme Court, which indicated that OSHA had overstepped its bounds by regulating public health generally rather

than just occupational health, it seems unlikely that the ETS will be revived. This post has been changed since its original publication.

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5

Processing Vaccination Accommodation Requests under the ADA

On January 14, 2022, the Job Accommodation Network published Processing Vaccination Accommodation Requests under the Americans with Disabilities Act outlining a sample process for employers to determine whether they must grant a vaccination exception or delay as a reasonable accommodation under the ADA when employees are subject to a federal or state-imposed vaccination mandate or an employer policy. When an employee requests an accommodation and the disability and need for the accommodation are not obvious or already documented, the employer can require reasonable medical documentation. There is no required ADA medical documentation request form, but the Safer Federal Workforce provides a template for federal employers that can be modified by other employers as needed.

Is the employee unable to be vaccinated for COVID-19 because of a disability?

No: Deny the request under the ADA, apply other laws if appropriate, or follow usual policies.
Yes: Can the employee safely work while unvaccinated in the current job and work environment?

Yes: Allow the vaccination exception or delay.
No: Can accommodations be provided to eliminate or reduce exposure risk to an acceptable level, absent undue hardship?

Yes: Grant the vaccination exception or delay and provide the accommodations.
No: Deny the request under the ADA, apply other laws if appropriate, or follow usual policies.

More information is located at FAQ: COVID-19 Vaccination and the Americans with Disabilities Act.

State Specific Labor Law Updates:

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

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Employment Law Updates: December 2021

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Employment Law Updates: December 2021

Four Federal, one District of Columbia, and fourteen 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.

Download All Updates

Federal Labor Law Updates:

1

Federal Contractor Minimum Wage and Final Tip Rules: Compliance Reminder

Minimum Wage

Beginning January 30, 2022, the minimum wage for work performed on or in connection with covered federal contracts will increase to $15.00 per hour. The minimum base wage for covered tipped employees will be $10.50 per hour.

A helpful FAQ can be found here.

80/20 Tip Credit Rule Restored

The Department of Labor’s (DOL) tip rule has been in limbo for the last year, but as of December 28, 2021, a new rule will be in effect. In the rule, the DOL makes it clear that an employer may only take a tip credit when its tipped employees perform work that is part of the employee’s tipped occupation. Work that is part of the tipped occupation includes work that produces tips as well as work that directly supports tip-producing work, provided that the directly supporting work is not performed for a substantial amount of time.

The DOL gives some useful examples of work that would be considered part of the employee’s tipped occupation and work that would not be considered part of their tipped occupation.

  • A server providing table service, such as taking orders, making recommendations, and serving food and drink — YES. That server preparing food, including salads, and cleaning the kitchen or bathrooms — NO.
  • A bartender making and serving drinks, talking to customers at the bar and, if the bar includes food service, serving food to customers — YES. That bartender cleaning the dining room or bathroom — NO.
  • A nail technician performing manicures and pedicures and assisting the patron to select the type of service — YES. That nail tech ordering supplies for the salon — NO.
  • A busser assisting servers with their tip-producing work for customers, such as table service, including filling water glasses, clearing dishes from tables, fetching and delivering items to and from tables, and bussing tables, including changing linens and setting tables — YES. That busser cleaning the kitchen or bathrooms — NO.
  • A parking attendant parking and retrieving cars and moving cars to retrieve a car at the request of customer — YES. That parking attendant servicing vehicles — NO.
  • A hotel housekeeper cleaning hotel rooms — YES. That housekeeper cleaning non- residential parts of a hotel, such as the exercise room, restaurant, and meeting rooms — NO.
  • A hotel bellhop assisting customers with their luggage — YES. That bellhop retrieving room service trays from guest rooms — NO.

 

In addition to work that produces tips (like the YES examples above), employees often perform work that is directly supporting their tip-producing work. For example, a server’s directly supporting work includes dining room prep, such as refilling salt and pepper shakers and ketchup bottles, rolling silverware, folding napkins, sweeping or vacuuming under tables in the dining area, and setting and bussing tables. Employers can take a tip credit when employee are doing directly supporting work up to a limit — once an employee spends a substantial amount of time on directly supporting work, the DOL considers them to be no longer engaged in their tipped occupation.

A substantial amount of time is defined as more than either 20% of the employee’s hours worked in a workweek while the employer is taking a tip credit or 30 continuous minutes. Once an employee has done directly supporting work for a substantial amount of time, the employer must stop taking a tip credit until the employee resumes clearly tip-producing activities.

Work that does not directly support their tip-producing work (such as the “NO” examples above) must always be paid without a tip credit.

You can read the rule and a lengthy explanation of how the DOL arrived where it did here. To find examples of how to calculate the amount of time that can be spent on directly supporting work while still applying a tip credit, search the linked document (the rule) for “5 hours.”

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2

Federal: EEOC Guidance on COVID-19, Americans with Disabilities Act (ADA), and Disability

The Equal Employment Opportunity Commission updated its What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws guidance by adding Section N that addresses:

  • How the ADA defines disability and how the definition applies to COVID-19.
  • When COVID-19 is an actual disability under the ADA and that it isn’t always an actual disability.
  • Examples of way that an individual with COVID-19 might or might not be substantially limited in a major life activity.
  • Depending on the facts, a person who has or had COVID-19 can be an individual with a record of a disability.
  • A person can be regarded as an individual with a disability if they have COVID-19 or their employer mistakenly believes they have COVID-19.
  • Examples of an employer regarding a person with COVID-19 as an individual with a disability.
  • An employer has not automatically discriminated against a person by regarding them as having a disability, for example the employer took an adverse action against the person because they have COVID-19 that is not both transitory and minor, for purposes of the ADA. It’s possible that an employer may not have engaged in unlawful discrimination under the ADA even if it took an adverse action based on an impairment. For example, an individual still needs to be qualified for the job held or desired.
  • A condition caused or worsened by COVID-19 can be a disability under the ADA.
  • An individual must establish coverage under a particular definition of disability to be eligible for a reasonable accommodation.
  • Employers can request supporting medical documentation before granting an employee’s request for a reasonable accommodation related to COVID-19.
  • Employers may voluntarily provide accommodations requested by an applicant or employee due to COVID-19, even if not required to do so under the ADA.
  • Employers that subjected an applicant or employee to an adverse action, and the applicant or employee is covered under any one of the three ADA definitions of disability, haven’t automatically violated the ADA because having a disability, alone, does not mean an individual was subjected to an unlawful employment action under the ADA.
  • ADA protections do apply to applicants or employees who do not meet an ADA definition of disability because the ADA’s requirements about disability-related inquiries and medical exams, medical confidentiality, retaliation, and interference apply to all applicants and employees, regardless of whether they have an ADA disability.


(Updated December 14, 2021)

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3

Federal: Extension of Form I-9 Flexibility Into 2022

The U.S. Immigration and Customs Enforcement (ICE) extended the Form I-9 compliance flexibility until April 30, 2022 due to necessary COVID-19 precautions. This extension continues to apply the guidance previously issued for employees hired on or after April 1, 2021, and work exclusively in a remote setting due to COVID-19-related precautions. Those employees are temporarily exempt from the physical inspection requirements for the Employment Eligibility Verification (Form I-9) until the earlier of:

Their working non-remotely on a regular, consistent, or predictable basis; or The extension ends.

On March 20, 2020, the Department of Homeland Security announced its deferral of the physical presence requirements for the Form I-9 to protect employees and employers from COVID-19. However, 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 the form.

(ICE announcement December 15, 2021)

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4

Federal: OSHA Vaccine-or-Test Mandate is Back with New Deadlines

The Sixth Circuit Court of Appeals has lifted the stay on the OSHA vaccine-or-test mandate (the Emergency Temporary Standard, or ETS), which applies to employers with 100 or more employees. This decision is already being appealed, and the ETS could be put on hold once again. We’ll let you know if that happens.

Lifting of the stay means that the ETS is in immediate effect nationwide and employers should begin to comply. The first compliance deadline was December 6 (for policies, notices, masking, vaccination status, etc.), and employers were supposed to begin testing unvaccinated employees by January 4. However, OSHA recognizes that compliance in such a short time frame is not feasible for many employers, so has said the following about enforcement:

“To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements
before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.”

We encourage you to review the materials that have been released by OSHA to help you understand your compliance obligations. Keep in mind that they likely haven’t updated the deadlines in the materials yet.

28-Minute Webinar

Frequently Asked Questions

Fact Sheet

Three-page Summary of the ETS

The ETS with Commentary

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State Specific Labor Law Updates:

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

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Employment Law Updates: May 2021

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Employment Law Updates: May 2021

Three Federal and six 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.

Download All Updates

Federal Labor Law Updates for May 2021

1

OSHA Endorses CDC Guidance for Fully Vaccinated Workers and Masks

According to the Occupational Safety and Health Administration’s (OSHA) website providing information about protecting workers against COVID-19 in the workplace, “The Centers for Disease Control and Prevention (CDC) issued new guidance relating to recommended precautions for people who are fully vaccinated, which is applicable to activities outside of healthcare and a few other environments. OSHA is reviewing the recent CDC guidance and will update its materials on its website accordingly. Until those updates are complete, please refer to the CDC guidance for information on measures appropriate to protect fully vaccinated workers.” According to the CDC’s guidance updated on May 13, 2021, fully vaccinated people no longer need to wear a mask or physically distance in any setting, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.

Fully Vaccinated People and Masks

On May 13, 2021, the Centers for Disease Control and Prevention announced that people who are fully vaccinated against COVID-19 can:

  • Resume activities that they did prior to the pandemic; and
  • Do so without wearing a mask or physically distancing, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.

According to the CDC, people are generally considered fully vaccinated:

  • Two weeks after their second dose in a two-dose series, such as the Pfizer or Moderna vaccines; or
  • Two weeks after a single-dose vaccine, such as Johnson & Johnson’s Janssen vaccine.

Some states have enacted strict laws requiring face masks, but they may be lifted in the near future. For instance, according to a California Department of Public Health press release from May 3, 2021, the state continues to require the use of face coverings, regardless of vaccination status, in indoor settings outside of one’s home.

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2

HHS and Protections Against Sexual Orientation and Gender Identity Discrimination in Health Care

On May 10, 2021, the U.S. Department of Health and Human Services (HHS) announced that the Office for Civil Rights (OCR) will interpret and enforce Section 1557 of the Affordable Care Act (Section 1557) to prohibit discrimination based on sexual orientation and gender identity. Section 1557 prohibits discrimination based on race, color, national origin, sex (this now includes sexual orientation and gender identity), age, or disability in covered health programs or activities. Additionally, covered entities are prohibited from discriminating against consumers based on sexual orientation or gender identity.

This announcement was made in consideration of a 2020 Supreme Court of the United States (SCOTUS) decision in Bostock v. Clayton County that held Title VII’s prohibition on sex discrimination in employment necessarily included discrimination when it is based on sexual orientation and gender identity. This ruling conflicted with the former administration’s narrow approach to the definition of discrimination based on sex. According to HHS Secretary Xavier Becerra,

“[T]he Supreme Court has made clear that people have a right not to be discriminated against on the basis of sex and receive equal treatment under the law, no matter their gender identity or sexual orientation. That’s why today HHS announced it will act on related reports of discrimination. Fear of discrimination can lead individuals to forgo care, which can have serious negative health consequences. It is the position of the Department of Health and Human Services that everyone—including LGBTQ people—should be able to access health care, free from discrimination or interference, period.

The OCR enforces Section 1557 to protect the civil rights of individuals who access (or seek to access) covered health programs or activities and, “[d]iscrimination in health care impacts health outcomes. Research shows that one quarter of LGBTQ people who faced discrimination postponed or avoided receiving needed medical care for fear of further discrimination.”

“The mission of our Department is to enhance the health and well-being of all Americans, no matter their gender identity or sexual orientation. All people need access to health care services to fix a broken bone, protect their heart health, and screen for cancer risk,” said Dr. Rachel Levine, Assistant Secretary for Health.  “No one should be discriminated against when seeking medical services because of who they are.”  

“OCR’s mission is to protect people from all forms of discrimination,” said Robinsue Frohboese, Acting OCR Director. “The OCR will follow Supreme Court precedent and federal law, and ensure that the law’s protections extend to those individuals who are discriminated against based on sexual orientation and gender identity.” Therefore, beginning May 10, 2021, and consistent with Bostock, the OCR will interpret Section 1557’s prohibition on discrimination based on sex to include discrimination based on sexual orientation and gender identity. 

3

DOL Withdraws Independent Contractor Rule from Previous Administration

On May 5, 2021, the U.S. Department of Labor (DOL) announced a final rule withdrawing the Independent Contractor Status Under the Fair Labor Standards Act final rule (Independent Contractor Rule) that was set to take effect in March 2021 but was postponed. According to the DOL, it is withdrawing the Independent Contractor Rule for several reasons, including:

  • The rule conflicted with the FLSA’s text and purpose, as well as relevant judicial precedent.
  • The two core factors the rule prioritized for determining employee status under the FLSA undermined the economic realities test and court decisions requiring analysis of the totality of the circumstances related to the employment relationship.
  • Application of the rule narrowed the facts and considerations that would be used when analyzing whether a worker is an employee or an independent contractor. This would result in workers losing FLSA protections. The FLSA includes provisions that require covered employers to pay employees at least the federal minimum wage for every hour they work and overtime compensation at not less than one-and-one-half times their regular rate of pay for every hour over 40 in a workweek. FLSA protections do not apply to independent contractors.

 

The withdrawal is effective May 6, 2021, its Federal Register publish date, resulting in there being no new rule that will currently take effect and the DOL will continue to use its previously established standards. The DOL also provides an FLSA Advisor that further discusses independent contractors.

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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, one click compliance Handbook, Compliance Database, HR Tools and Employee Training are ready to help navigate HR all year long. Everything included with your AllMyHR Solutions. 

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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.

Download All Updates

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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Employment Law Updates: February 2021

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State-Specific Labor Law Updates

Seven State Law Updates have been issued. Our HR Advisors are versed and ready to answer your toughest HR questions.

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February 2021 Law Alert Map

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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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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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State Specific Labor Law Updates

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