COVID-19

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On September 11, in response to a New York federal district court striking down some of the Department of Labor (DOL) regulations regarding the Families First Coronavirus Response Act (FFCRA), the DOL issued guidance (Guidance) affirming in part and revising in part, its regulations. While most of the Guidance does not result in any significant change or consequence to employers, the DOL’s revision of its prior definition of “health care provider” significantly impacts how healthcare entities in the U.S. must implement paid leave benefits under the FFCRA.

Work Availability

The Guidance clarifies that the “work-availability” requirement under the FFCRA applies to all types of leave taken under the FFCRA. In other words, to take any leave under the FFCRA, the FFCRA-qualifying reason must be the actual reason that the employee is unable to work rather than the employer not having work available for the employee to perform. The DOL makes clear in the Guidance that the “work-availability” requirement ensures that employers are not forced to provide paid leave benefits under the FFCRA where the employer would not have had work for the employee to perform, regardless of whether the employee has a qualifying reason for leave under the FFCRA.

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Continue Reading DOL Issues Another Round of Guidance on FFCRA

As states and cities begin to ease COVID-19 restrictions and organizations return their employees to the workplace, employers are forced to navigate an unprecedented and fluid landscape of post-pandemic compliance issues.

This virtual seminar will address the difficult issues facing employers as they return their employees to the workplace and provide practical guidance for understanding…

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.

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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.”

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Continue Reading OSHA Guidance Regarding Cloth Face Coverings in the Workplace

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.
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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?

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

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.

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

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.

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