On August 3, the federal court for the Southern District of New York (SDNY) issued an order invalidating several significant portions of the Department of Labor’s (DOL’s) Final Rule regarding the Families First Coronavirus Response Act (FFCRA). The SDNY struck down the following provisions:

  1. That work has to be otherwise available to the employee for the employee to be eligible for Emergency Paid Sick Leave (EPSL).
  2. The DOL’s expansive definition of “healthcare providers” for the purposes of who can be excluded from the FFCRA mandated leave.
  3. That an employer must agree to the use of EPSL on an intermittent basis by employees for reasons not related to the possible spread of COVID-19 by the employee.
  4. That an employee must provide documentation requesting FFCRA before the beginning of the leave.

This ruling clearly applies in the Southern District of New York, however, its impact outside of the district is uncertain. As of now, employers who operate in that jurisdiction may have differing obligations under the FFCRA than employers operating outside.

A more detailed description of the ruling is provided below.

Continue Reading Court Ruling Invalidates DOL’s Final Rule Related to FFCRA

The Occupational Safety and Health Administration (OSHA) has updated its Frequently Asked Questions (FAQs) regarding workplace safety and addressing topics related to COVID-19, including whether workers should wear a cloth face covering while at work per the CDC’s recommendations.

OSHA generally advises, yes.  The FAQs state the following:

“OSHA generally recommends that employers encourage workers to wear face coverings at work.  Face coverings are intended to prevent wearers who have Coronavirus Disease (COVID-19) without knowing it (i.e., those who are asymptomatic or pre-symptomatic) from spreading potentially infectious respiratory droplets to others.  This is a known source control.”

Continue Reading OSHA Guidance Regarding Cloth Face Coverings in the Workplace

The U.S. Supreme Court issued a landmark decision on Monday, June 15, in the case of Bostock v. Clayton County, ruling that the prohibitions against discrimination “because of sex” contained in Title VII of the Civil Rights Act of 1964 (Title VII) extend to protect gay and transgender employees against workplace discrimination. Justice Neil Gorsuch delivered the opinion of the Court with Justices Alito and Kavanaugh each issuing dissenting opinions. In each of the three consolidated cases upon which this opinion was rendered, an employee had been terminated from employment for being gay or transgender.

The three employees brought suit in three different jurisdictions. In one case, the Eleventh Circuit ruled that Title VII’s protections did not prohibit employers from firing employees for being gay, and dismissed the lawsuit. In the other two cases, the Second Circuit and Sixth Circuit ruled that Title VII did provide the alleged protections and had permitted the cases involving those two employees to proceed. These inconsistent rulings, therefore, set the following question before the Court:

Is it legally permissible under Title VII’s language prohibiting discrimination “because of sex” for an employer to take an adverse action against an employee merely because the employee is gay or transgender? 

Continue Reading Supreme Court Rules that Title VII Protects LGBTQ Employees

The U.S. Equal Employment Opportunity Commission (EEOC) updated its COVID-19 Technical Assistance Q&A on June 11, addressing an employer’s handling of pandemic-related harassment, pregnant employees, employees with family members at higher risk of severe illness from COVID-19, and other workplace discrimination issues. Below is an overview of that guidance.

Continue Reading EEOC Update: COVID-19 Guidance on Various Workplace Discrimination Issues

The Occupational Safety and Health Administration (OSHA) has issued new guidance regarding an employer’s obligation to record all COVID-19 illnesses among workers if the illness is “work-related.” This new obligation went into effect on May 26, 2020, and supersedes guidance issued in April.

Recordkeeping Obligations

Employers are responsible for recording cases of COVID-19 if all of the following requirements are met:

When is a COVID-19 Illness Work-Related?

Continue Reading Employer’s Obligation on Reporting COVID-19 as a Work-Related Illness – Updated OSHA Guidance

Yes, that PCORI Fee—it’s back!

About this time last year, we let you know that this filing and fee was coming due, and that it was the last time it would be required for a calendar year plan. Since that time, however, the requirement was extended another ten years (by the Further Consolidated Appropriations Act, 2020, signed into law on December 20, 2019).

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 due again this year, by Friday, July 31, 2020.

Continue Reading Reminder – Annual Deadline (July 31) to Report and Pay PCORI Fee is Approaching [Again!]

I recently offered guidance on the Worker Adjustment and Retraining Notification (WARN) Act as it relates to changes in employment status for an article by the Society for Human Resource Management (SHRM) addressing potential litigation issues from the COVID-19 fallout.

The WARN Act requires most employers with more than 100 employees to provide a 60-day notice ahead of large-scale layoffs or the closing of operations. WARN Act claims require plaintiffs to show the following:

  • A facility closed and at least 50 full-time employees lost their jobs.
  • At least 500 full-time employees at a facility lost their jobs.
  • At least 50 full-time employees lost their jobs and the number of full-time employees at the facility losing their jobs exceeded one third of all employees at the facility.

Continue Reading Guidance on Potential Litigation Involving WARN Act Following COVID-19 Pandemic

I’m excited to be a presenter during a webinar titled, “Impact of COVID-19 and The CARES Act on Your Retirement Plan” on Wednesday, May 13. The program will discuss the impact of COVID-19 and the CARES Act on retirement plans and what plan sponsors should know, including rule changes for retirement plans and the administrative impact of the new laws.

The event is sponsored by Mauldin & Jenkins, LLC, Sarasota Private Trust Company, and Bass, Berry & Sims, PLC.

For more information and to register, visit the event web page.

As part of the federal government’s response to the COVID-19 pandemic, the Internal Revenue Service (IRS), the Employee Benefits Security Administration (EBSA), and Pension Benefit Guaranty Corporation (PBGC) have recently provided relief to benefit plan sponsors by moving back certain upcoming plan compliance deadlines. See further below for a detailed list of the specific relief. IRS Notice 2020-23 provides that if any deadline would occur between April 1 and July 14, that deadline is automatically moved back until July 15, 2020, and this extension applies to a list of 44 employee benefit plan-related deadlines. The IRS notice triggered the PBGC’s disaster relief policy, which automatically extends certain PBGC deadlines that occur in the same April 1 to July 14 time period to July 15, 2020.

Additional relief was announced on April 28, in the form of a joint notice ( Joint Notice) issued by EBSA, IRS and the Treasury Department, which extended a number of deadlines for benefit plans and participants in accordance with CARES Act changes to ERISA Section 518. The Joint Notice’s relief applies to the “Outbreak Period,” the length of time beginning on March 1, 2020, and ending 60 days after the announcement that the COVID-19 National Emergency is over. On the same day, EBSA issued Disaster Relief Notice 2020-01 (Disaster Relief Notice). The Disaster Relief Notice clarified EBSA’s enforcement stance on certain fiduciary duties that plan sponsors have by extending deadlines. The Disaster Relief Notice also stated that the Outbreak Period extension, described in the Joint Notice, also applies to the distribution timelines for notices, disclosures, and other documents that Title I of ERISA requires plans to distribute to participants and beneficiaries. EBSA also released an FAQ which explains some of the relief provided by the Joint Notice and Disaster Relief Notice.

Continue Reading IRS, EBSA and PBGC Provide Further COVID-19 Relief for Benefit Plans

I recently offered insights in an article on the workplace safety orders issued by state and federal agencies as many employees start the return to work following the COVID-19 pandemic. While these orders serve as helpful guidance on how to businesses can safely reopen, many are also questioning the liability risk that comes with reopening a workplace.

As I pointed out in the article, “The biggest issue is that it’s unclear at this point whether an employer can be held liable to employees who become sick. … Obviously this is an evolving situation. We’re learning new aspects about the virus every day and its transmission so the safety protocols considered best practices today might be outdated a few months from now.”

While the guidelines are helpful, I advised that “It’s really up to the employers to figure out what’s appropriate for their companies. It’s taking all of that, the totality of those guidelines, and figuring out what’s applicable to each company’s workplace and what they can reasonably do.” Clients should proactively develop policies and educate their staff on those policies, rather than wait for employees to request safety protections.

The full article, “Reopening Businesses Face State Virus Workplace-Safety Orders,” was published by Bloomberg Law on April 30 and is available online.