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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.

Labor Law Updates for July 2020

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.

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.

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:

Fact Sheet for Employees;
Fact Sheet for Employers;
Questions and Answers about paid sick and expanded family and medical leave under the FFCRA;
Guidance posters for federal workers and all other employees, which fulfill notice requirements for employers that need to inform employees of their FFCRA rights;
Questions and Answers about posting requirements; and
Quick Benefits Tips to determine how much paid leave the FFCRA allows workers to take.

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.

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:
- Certification of Healthcare Provider for a Serious Health Condition:
  - Employee’s serious health condition (Form WH-380-E) – use when a leave request is due to the medical condition of the employee.
  - Family member’s serious health condition (Form WH-380-F) – use when a leave request is due to the medical condition of the employee’s family member.
- Certification of Military Family Leave:
  - Qualifying Exigency (Form WH-384) – use when the leave request arises out of the foreign deployment of the employee’s spouse, son, daughter, or parent.
  - Military Caregiver Leave of a Current Servicemember (Form WH-385) – use when requesting leave to care for a family member who is a current service member with a serious injury or illness.
  - Military Caregiver Leave of a Veteran (Form WH-385-V) – use when requesting leave to care for a family member is who a covered veteran with a serious injury or illness.

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)

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.

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.