In response to President Biden’s Executive Order issued on January 21, 2021, directing the Occupational Safety and Health Administration (OSHA) to take action to reduce the risk that workers may contract COVID-19 in the workplace, OSHA has issued an emergency temporary standard (ETS) to set forth guidelines to protect healthcare workers.

Effective June 21, 2021, the ETS applies only to settings where any employee provides healthcare services or healthcare support services.  The masking, distancing, and barrier requirements under the ETS do not apply to settings with well-defined areas where all employees are fully vaccinated and there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present. OSHA has provided a flowchart to determine which workplaces are affected.

Develop and implement a COVID-19 plan:  Employers are required to develop and implement a plan to combat COVID-19.  This plan must be in writing if there are more than 10 employees.  Employers must conduct hazard assessments for each specific workplace to identify potential COVID-19 hazards and designate a safety coordinator with the authority to ensure compliance with all aspects of the plan.

Limit and monitor points of entry:  In workplaces where direct patient care is provided, employers must limit and monitor points of entry.  Patients, clients, residents, and other visitors must also be screened and triaged.  Other patient management strategies must be implemented per CDC guidance.

Continue Reading OSHA Issues Emergency Temporary Standard to Protect Healthcare Workers from COVID-19

I recently authored an article for the Nashville Business Journal discussing strategies to overcome risks for employers opting to continue to operate with a remote or hybrid workforce.

Telework introduces an increased risk of noncompliance with the Fair Labor Standards Act’s requirement that all non-exempt employees be paid for all hours worked, including any overtime hours, which is more difficult to monitor with dispersed employees. “Employers with remote workforces should clearly outline a timekeeping policy regarding the accurate recording of all time worked, and train employees on those expectations, including a requirement that remote workers obtain advance approval from their supervisor before working any overtime,” I stated in the article.

Another threat to monitor includes increased risk of network privacy and security loss. Employers should update security protocols, including employee training on remote access security and password protection to prevent unauthorized access to sensitive information. Investment in company-issued equipment with preferred antivirus software is also a crucial protective measure. Continue Reading Strategies for Employers Operating with a Hybrid Workforce

Effective July 1, 2021, all Tennessee public and private entities or businesses with facilities open to the general public, and which have a formal or informal policy allowing a member of either biological sex to use any public restroom within the facility, must post a notice stating such.

This notice must be posted in compliance with the Americans with Disabilities Act restroom signage standards and must state: “This facility maintains a policy of allowing the use of restrooms by either biological sex, regardless of the designation on the restroom.”

This notice requirement applies to all public restrooms, including locker rooms, shower facilities, dressing areas or other facilities where a person would have a reasonable expectation of privacy, and the notice should be posted at the entrance of the public restroom as well as the entrance of the building. The notice requirement does not apply to unisex, single-occupant restrooms or family restrooms intended for use by either biological sex.

Employers with facilities in Tennessee that are open to the general public should determine whether their restroom use policies would implicate this new posting requirement. If you have any questions about how this Tennessee House Bill regarding restrooms will impact your business, please contact the author.

The legislatures of Oregon, Nevada and Illinois recently placed additional limitations on restrictive covenants, particularly non-competition covenants.

Changes to Oregon Restrictive Covenants

Effective as to agreements entered into on or after May 21, 2021, Oregon has further restricted non-compete agreements.  Oregon previously limited non-compete agreements to a maximum of 18 months from the date of separation and to only those employees who do the following:

  • Engage in administrative, executive or professional work.
  • Perform predominately intellectual, managerial or creative tasks.
  • Exercise discretion and independent judgment.
  • Are paid a salary (or combination of salary and commissions) that exceeds the median income for a four-person family.

Continue Reading Oregon, Nevada and Illinois Further Limit Restrictive Covenants

The EEOC has updated its guidance “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” The new guidance clarifies that employers may offer incentives to employees to voluntarily provide documentation or other confirmation that they have received the COVID-19 vaccination from a third-party (i.e., doctor, pharmacy, health agency or other healthcare provider).

The EEOC has confirmed that requesting this documentation is not a disability-related inquiry covered by the ADA and is not an unlawful request for genetic information under GINA, but continues to caution employers to keep this vaccination information confidential pursuant to the ADA. However, the EEOC has distinguished incentives offered to employees for voluntarily receiving a vaccination administered by the employer or its agent. In that case, the EEOC cautions employers against offering incentives that are so substantial to become coercive, as “vaccinations require employees to answer pre-vaccination disability-related screen questions, [and] a very large incentive could make employees feel pressured to disclose protected medical information.”

Continue Reading EEOC Update: Employers Can Offer Vaccine Incentives to Workers

Last month, the Department of Labor (DOL) announced that it will focus on requesting information from employers where there are potential “red flags” of non-compliance with the provisions and rules of the Mental Health Parity and Addiction Equity Act (MHPAEA), as modified by the Consolidated Appropriations Act, 2021 (CAA).

Section 203 of the CAA imposes a new requirement on group health plans to ensure compliance with the MHPAEA: group health plans and insurers that provide both medical/surgical benefits and mental health or substance use disorder (MH/SUD) benefits—and that impose non-quantitative treatment limitations (NQTLs) on the MH/SUD benefits—must prepare a “comparative analysis” of any NQTLs that apply. As of February 10, 2021, plans must supply this comparative analysis and other specific information upon request by an applicable state or federal agency (e.g., the DOL for ERISA plans). The DOL has been actively auditing group health plans for compliance with the MHPAEA and requesting documentation of these comparative analyses.

Continue Reading DOL to Focus on Red Flags in Mental Health Parity Requests

The annual filing (and fee payment) for applicable self-insured health plans and specified health insurance policies used to fund the Patient-Centered Outcomes Research Institute (the PCORI fee) is soon coming due—this year, by Monday, August 2, 2021.

IMPORTANT NOTE: The Form 720 on which the fee is reported typically is due on July 31; however, in 2021, July 31 falls on a Saturday, and, according to the Instructions (on page 2), if the due date falls on a Saturday, Sunday, or legal holiday, you may file on the next business day. And, so, this year’s filing is due by August 2, 2021.

Internal Revenue Service (IRS) Form 720, Quarterly Federal Excise Tax Return, is still used to report and pay (in Part II, IRS No. 133, on page 2) the annual PCORI fee. The applicable rate has increased to $2.66 per covered life (announced in late 2020 via IRS Notice 2020-84).

Continue Reading Reminder – Annual Deadline (typically, July 31) to Report and Pay PCORI Fee is Approaching

The American Rescue Plan Act of 2021 (ARPA) extends tax credits to those employers who voluntarily choose to provide paid leave benefits to employees under the Families First Coronavirus Response Act (FFCRA).

As you may recall, beginning January 1, 2021, employers with fewer than 500 employees could voluntarily provide paid leave to employees according to the FFCRA for certain qualifying reasons and receive tax credits for the paid leave.  The ARPA has extended employers’ eligibility for tax credits through September 30, 2021.  However, the ARPA contains new non-discrimination rules stating that FFCRA tax credits will not be made available to employers who discriminate in favor of highly compensated employees, full-time employees, or employees on the basis of tenure.

The ARPA also expanded the list of qualifying reasons for taking paid leave under the FFCRA.

Continue Reading ARPA Extends Tax Credits for Employers and Expands Qualifications for FFCRA Leave

Join us for a virtual seminar in which Bass, Berry & Sims labor & employment attorneys will address a broad range of recent employment law developments and anticipated issues significant to employers and provide practical guidance for understanding the associated impacts and legal challenges.

Topics covered during the webinar will include:

  • Return to work update and workplace legal considerations post-pandemic.
  • Anticipated agency changes and new guidance under the Biden administration, including impact on traditional labor and President Biden’s appointment of a commission to study expanding the U.S. Supreme Court.
  • Vaccinations in the workplace: incentive programs, COVID-19 vaccine passports and leave laws related to the vaccine’s side effects.
  • Recent legislation affecting multistate employers, including sexual harassment training, record keeping, family and medical leave, and discrimination.

WEBINAR DETAILS

Title: Labor & Employment Law Update: Recent Developments for Employers

Date: Wednesday, May 5, 2021 Time: 10:00 a.m. – 11:00 a.m. CT

Who Should Attend

  • In-house legal counsel.
  • Human resources professionals.
  • C-level executives, consultants and principals.

This program is pending approval for HRCI and Tennessee CLE credit (1 hour)

Equity compensation – which links the self-interests of a company’s service providers with the interests of the company and its investors – is a compelling incentive for start-up companies to attract and motivate employees and consultants. Many of these employees and consultants understand and expect that equity or phantom equity arrangements will make up a larger portion of their overall compensation than employees at more mature companies. There are a host of considerations involved in designing and granting awards under an equity incentive plan, and here are five important ones:

  1. Decide what type of equity award to issue.
  2. Be discerning in setting up your equity pool and making grants.
  3. Be careful in how you promise equity awards to employees and consultants.
  4. Exercise caution in setting the strike price of an option.
  5. Encourage employees to consult with legal and tax advisors to determine whether it is advisable to file a Section 83(b) election.

Continue reading on bassberry.com