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

Can an employer be held liable for sexual misconduct at a private party that takes place after an employer-sponsored holiday party?  A recent Tennessee Court of Appeals case appears to say “yes” and thereby presents a new concern for employers considering employer-sponsored events.

In Phelps v. State, an employee sued her employer, the State of Tennessee, for sexual harassment and retaliation claims under the Tennessee Human Rights Act (THRA).  The instances of alleged sexual harassment included serious sexual misconduct (including a sexual assault) at an after-party following a State-sponsored Halloween party.  The court ruled that the State could be liable for these “after-party” events, even though they took place after hours and away from the place of employment.

Background

Continue Reading Halloween Party Turns Scary for State in New Court Decision: Appellate Court Says Employer May Be Held Liable for Off-Duty, Off-Premises Sexual Harassment Claims

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

The National Labor Relations Board (NLRB or Board) recently announced it was changing course on whether students should be considered employees and therefore can unionize. This change of course returns to previous Board precedent from case law that graduate students, and perhaps any students employed for pay, can be considered employees. This change of course also halts what many thought signaled the Board’s desire to answer this issue by rulemaking rather than through case precedent.

On March 15, the Board issued a notice withdrawing a proposed rulemaking from 2019 which many thought signaled the Board’s plan to adopt a rule regarding the status of students as employees under the National Labor Relations Act (NLRA). The result of this withdrawal is that the governing precedent returns to the decision in Columbia v. NLRB in which the Board held that not only graduate students but any students employed for pay, may be employees subject to collective bargaining under the NLRA.

Continue Reading on bassberry.com

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

From the Bass, Berry & Sims Blog Network
From the Bass, Berry & Sims Blog Network

Thought Leadership by our Attorneys.