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

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

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

Plan sponsors and plan fiduciaries, and vendors, advisors and other service providers: Take notice! The end of the special COVID-19 “Outbreak Period,” which began on March 1, 2020 and continues to apply, is nowhere in sight based on recent guidance from the Department of Labor (DOL) in the form of a Disaster Relief Notice (New Guidance).

This means that the “tolling” of a number of participant and plan deadlines did not end on February 28, 2021, as most plan sponsors and others had assumed based on prior guidance. In fact, for some participants, the tolling period could extend far out into the future. In addition, the new guidance reminds plan sponsors and plan fiduciaries of the “guiding principle” for administering employee benefit plans – act reasonably, prudently and in the interest of workers and their families. Good faith compliance with the new guidance will likely be judged on this standard.

Background

Pursuant to joint guidance issued on May 4, 2020 (Joint Guidance), the DOL and Internal Revenue Service (IRS) suspended or “tolled” a number of participant and plan deadlines. The “tolled” deadlines include:

  • HIPAA Special Enrollment Notice Obligations – the 30-day period (or 60-day period, as applicable) to request special enrollment in a group health plan.
  • COBRA Notices, Elections and Premium Payments – the periods for individuals to notify the plan of certain COBRA events (e.g., a qualifying event, such as a divorce or child losing eligibility), the 60-day period for electing COBRA continuation coverage, and the 45-day (initial) and 30-day (monthly) deadlines for making COBRA premium payments.
  • Claims and Appeal Procedures – the date by which an individual may file a claim for benefits or an appeal of an adverse benefit determination (this applies to all ERISA-both welfare and retirement-plans).


Continue Reading DOL Disaster Relief Notice Offers Guidance on Extension of COVID-19 Outbreak Period Benefits

Looking back on 2020, nearly all employers were forced to embrace remote work as the result of the COVID-19 pandemic to comply with state and local lockdowns and to slow and reduce the transmission of the virus.  This was a global work-from-home experiment no one signed up for, and as we now know, most businesses were ill-prepared to handle it. However, with nearly a full year of remote work underfoot, companies have either successfully transitioned their business operations to sustain this work-from-home model or have adjusted the work environment to safely resume on-site operations, and have learned some key lessons along the way.

Employee Leave


Continue Reading Lessons Learned from COVID-19 and Continued Implications

Join us for a virtual seminar in which Bass, Berry & Sims’ labor & employment attorneys will discuss anticipated legislative developments and agency guidance changes under the new administration, and provide practical advice for understanding the associated impacts and legal challenges to employers.

We will also review the lessons learned from COVID-19, address its continued

As passed back in March 2020, the Families First Coronavirus Response Act (FFCRA)’s Emergency Paid Sick Leave (EPSL) Act and Emergency Family and Medical Leave Act (EFMLA) requirements by which employers with less than 500 employees must provide paid leave for certain COVID-19-related circumstances will expire as of December 31, 2020. The Coronavirus Response and Relief Supplemental Appropriations Act (Supplemental Bill) passed by Congress on December 21 does not extend those requirements beyond the December 31 date. However, the Supplemental Bill does continue to allow covered employers to take tax credits for such paid leave provided to employees between January 1 and March 31, 2021, if that paid leave would have otherwise been consistent with the FFCRA’s requirements if they had been extended beyond December 31.

Continue Reading New Relief Bill Does Not Extend FFCRA Requirements but Does Encourage Voluntary Extension

The Equal Employment Opportunity Commission (EEOC) has released updated guidance regarding employers’ and employees’ rights and obligations related to mandatory COVID-19 vaccination.

Mandatory Vaccinations are Permitted

On December 16, the EEOC released guidance confirming that employers may require employees to be vaccinated for COVID-19, subject to Title VII of the Civil Rights Act (Title VII) prohibiting religious discrimination and the Americans with Disabilities Act (ADA) which prohibits discrimination based on disability.


Continue Reading EEOC Issues Updated Employer Guidance Concerning Mandatory COVID-19 Vaccinations