The U.S. Department of Labor (DOL) issued its Final Rule regarding the test for independent contractor classification.  The Final Rule, which becomes effective March 11, 2024, largely mirrors the DOL’s proposed rule announced in 2022 and sets forth a multi-factor “totality of the circumstances” economic realities framework for analyzing whether a worker is an employee or independent contractor under the Fair Labor Standards Act (FLSA).Continue Reading DOL Issues Final Rule Regarding Independent Contractor Classification

NOTE: This post was originally written October 31, 2023, and was updated on December 12, 2023.

The National Labor Relations Board (NLRB) recently issued a final rule setting forth a new standard for joint-employer status under the National Labor Relations Act (NLRA). The new rule, the NLRB recently voted to delay by 2 months and is now set to go into effect on February 26, 2024, drastically broadens the scope of who can be considered a joint employer under the NLRA.Continue Reading NLRB Issues New Rule Broadening Joint-Employer Status

Starting July 1, 2022, employers that maintain group health plans (plans) and health insurance issuers (issuers) will be required to disclose pricing information on a public website in the form of three machine-readable files (MRFs). This requirement is one of the Transparency in Coverage Final Rules (the Rules) released by the Department of Health and Human Services (HHS), the Department of Labor (DOL), and the Department of the Treasury (collectively, the Departments) in November 2020.
Continue Reading Enforcement of the Transparency in Coverage Public Disclosure Requirement Rapidly Approaching

The Occupational Safety and Health Administration (OSHA) has published the long-awaited Emergency Temporary Standard (ETS) as directed by President Biden in his September 9 COVID-19 Action Plan – Path Out of the Pandemic.

The ETS will take effect as soon as it is published in the Federal Register and sets forth the following two options for employers with over 100 employees:

  1. A mandatory vaccination policy.
  2. A written policy allowing employees to undergo ongoing testing and masking instead of vaccination.

Employers are required to comply with all aspects of the ETS by December 5, except for the testing program for those employers who choose to provide this option to employees.  In that case, employees must either be fully vaccinated or submit proof of testing by January 4, 2022.

We break down the details below.

Which Employers Are Covered?

All employers with a total of 100 or more (full-time or part-time) employees at any time the ETS is in effect are covered.  The ETS does not apply to workplaces subject to the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors or settings where an employee provides healthcare services or healthcare support services when subject to the requirements of § 1910.502.Continue Reading OSHA Releases COVID-19 Emergency Temporary Standard: Here’s What It Means for Employers

President Biden has announced a series of measures aimed at combatting the COVID-19 pandemic which will require certain employers to set forth mandatory vaccination requirements. These measures direct the Department of Labor’s Occupational Safety and Health Administration (OSHA) and the Safer Federal Workforce Task Force (Task Force) to set forth specific guidance, which we are still awaiting.  However, here is what we know now:

OSHA Emergency Temporary Standard

According to President Biden’s September 9, 2021 briefing, OSHA has been tasked with developing an Emergency Temporary Standard (ETS) requiring companies with 100 or more employees to require employees be vaccinated against COVID-19 or be tested on a weekly basis. The ETS will also require these companies to provide paid time off for the time it takes workers to get vaccinated or to recover if they are under the weather post-vaccination. The fines for violating this rule are reported to be $14,000 per violation.Continue Reading President Biden Announces Mandatory Vaccination Requirements for Certain Employers

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

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

While managing the fallout from COVID-19 has dominated the focus of employers this year, there have been a number of recent employment law developments unrelated to the virus. During this virtual seminar Bass, Berry & Sims labor & employment attorneys will address legislative developments and agency guidance with respect to a number of these issues