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.

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.

Bass, Berry & Sims has provided updated guidance on the employment-related provisions of the Families First Coronavirus Response Act (FFCRA) and answers to some frequently asked questions regarding the FFCRA regarding providing Emergency Paid Sick Leave (EPSL) and Emergency Family and Medical Leave Act (EFMLA) benefits under the Act. This guidance includes answers to some of the most frequently asked questions, such as:

  • Who is a covered employer under the FFCRA?
  • Do I have to provide FFCRA benefits to employees who are laid off or furloughed?
  • How much EPSL do I have to pay to my employees?
  • How do my current leave policies interact with EPSL?
  • How much EFMLA leave do I have to pay?
  • What are the differences between EFMLA and FMLA?
  • Is intermittent leave permitted under the FFCRA?
Continue reading on BassBerry.com

As the U.S. economy reopens in the coming weeks and months, employers are faced with the challenge of bringing employees back to work to a workplace that is drastically different from the one that existed just weeks ago. While states and cities will have unique requirements and conditions with which employers must comply, they intend to rely on, in large part, the constantly evolving guidance provided by the Centers for Disease Control (CDC), Occupational Safety and Health Administration (OSHA), and the Equal Employment Opportunity Commission (EEOC). Consequently, it will continue to be crucial for employers to comply with the most recent guidance from the CDC, OSHA, public health agencies, and the EEOC as they bring employees back to work and re-open businesses.

At the link below is a general overview of current guidance that employers must consider before allowing employees to return to offices and other workplaces, including:

  • EEOC guidance for the interpretation of the ADA and the Rehabilitation Act in light of COVID-19
  • OSHA guidance on preparing the workplace
  • CDC guidance on workplace health and safety

The overview is followed by a summary of the applicable return-to-work plans issued by the state of Tennessee and the city of Nashville. The final section of this update sets forth some frequently asked questions regarding the return of employees to the workplace in the era of COVID-19.

Read more on BassBerry.com

As developments related to COVID-19 continue to unfold, it’s imperative to prioritize the rapidly evolving state and federal level regulations and act accordingly to ensure your business is complying, but also accessing available federal and state assistance. In an effort to help navigate the unique challenges government contractors face during this time, our attorneys will discuss recent developments and preview risks associated with what has essentially become war-time contracting.

In this webinar, Labor & Employment attorney Tim Garrett will join Bass, Berry & Sims’ Government Contracts and Isaac Natter, Associate General Counsel (Acquisition & Logistics) at the Department of Defense (DoD) to discuss these timely developments and offer practical guidance on key topics of interest, including:

  • A DoD insider’s view on the new Section 3610 “Ready State” CARES Act Authority
  • Latest on SBA’s Paycheck Protection Program
  • Overview of FFCRA benefits and qualifying reasons
  • Contractual issues such as excusable delays, stop-work order and terminations
  • Government use of the Defense Production Act in response to
    COVID-19

WEBINAR DETAILS

Title: Fighting the Virus: Update on COVID-19 Issues Impacting Government Contractors

Date: Thursday, April 16, 2020 Time: 1:00 p.m. – 2:00 p.m. EDT

Who Should Attend

  • Executives
  • Private equity professionals
  • Management professionals
  • General counsel
  • Other in-house legal and compliance personnel of government contractors, financial institutions and manufacturers

I recently explained how employers can legally respond when an employee tests positive for COVID-19 in an article for the Washington Business Journal. Many employers think the Health Insurance Portability and Accountability Act (HIPPA) protects employee health information, but that pertains specifically to health providers.

For employers, the Americans with Disabilities Act, protects the privacy of a workers health records and information, so employers may ask employees if they’ve tested positive for the coronavirus, but must keep that information confidential in accordance with the ADA.

When it comes to taking an employee’s temperature, the Equal Employment Opportunity Commission allows employers to get thermometer readings given the potential direct threat to others who could be exposed. I advised in the article to “treat this like a real medical test,” and go to a private room to take someone’s temperature and keep results completely confidential in that employee’s medical file.

Continue Reading Working in the Age of the Coronavirus

Bass, Berry & Sims attorneys Davidson French, Bob Horton and Kimberly Veirs recently presented a Middle Tennessee Society for Human Resource Management’s (MTSHRM) webinar.

The webinar, entitled “Update on Federal Legislation in Response to COVID-19 Pandemic Impacting Employers,” reviewed the latest DOL guidance for employers implementing the provisions of the Families First Coronavirus Relief Act as well as provide general guidance regarding the elements of the Paycheck Protection Program.

Access the recording here.

Since the passage of the Families First Coronavirus Response Act (FFCRA), many healthcare organizations, especially those with a structure that includes a friendly or captive PC model, have struggled to determine whether they may aggregate employees across all affiliated entities to reach the 500-employee threshold that exempts employers from the paid leave requirements of the FFCRA.

However, based on rolling FFCRA guidance recently issued by the Department of Labor (DOL), employers of healthcare providers may exclude such employees captured by the DOL’s definition of healthcare provider from paid leave benefits under the FFCRA.  Because of the broad scope of the definition of healthcare provider recently provided by the DOL, many healthcare organizations and even those entities that provide services to healthcare organizations may be able to exclude all of their employees from paid leave benefits under the FFCRA regardless of whether they meet the 500-employee threshold.

Continue Reading DOL Offers Definition of Healthcare Provider under FFCRA

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

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