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DOL Updates FAQs on FFCRA Leave as a New School Year Approaches

August 28, 2020 Leave a comment

By: Amanda E. Thibodeau

This week the U.S. Department of Labor (DOL) updated its Frequently Asked Questions (See Questions #98-100) on leave eligibility under the Families First Coronavirus Response Act (FFCRA), in anticipation of a significant shift to remote school programs across the U.S. As a new school year approaches, employers should familiarize themselves with this new development as they begin to field new requests for FFCRA leave from their employees.

The DOL addressed how the FFCRA applies to several school program scenarios including fully remote programs, hybrid arrangements, and what happens if a parent chooses a remote option over in-person schooling.

The DOL clarified that if a school does not permit the child to attend school in-person and is instead only permitting remote learning, the school is effectively “closed” for purposes of the FFCRA, and the parent may take leave to care for the child. Likewise, if a school is operating on a hybrid basis with some days in-person and other days remote, the FFCRA leave would apply to those remote days where the child is not permitted in school. This would effectively allow an employee to be eligible for FFCRA leave on an intermittent basis.

If a school is offering in-person attendance (either fully in-person or on a hybrid basis), but a parent elects to keep the child home and engage in remote learning, the parent would not qualify for FFCRA leave. The DOL reasons that because the school is open for in-person learning, it would not be covered under the regulations. If, however, the child is home on a remote basis because of another COVID-19-related reason, such as a quarantine order from a health professional, then the parent may be eligible for FFCRA leave.

It is important to note that when evaluating such leave requests, the employee must still supply certain information, including the child’s name (who is under the age of 14), the name of the school that is closed, and that there is no other suitable person available to care for the child. It is unlikely, then, that both parents of a child engaged in remote learning would qualify for FFCRA leave. And, of course, employers should continue to keep such written documentation in order to take advantage of the available tax credit.

See our complete COVID-19 Resource Collection for additional information, or contact a member of the Morse Employment Team.

President Issues New Executive Order on Enhanced Unemployment Benefits

August 13, 2020 Leave a comment

By: Amanda E. Thibodeau

AET Headshot Photo 2019 (M1344539xB1386)On August 8, 2020, President Trump issued four executive orders in response to the COVID-19 pandemic.  One of the President’s executive orders  (the “EO”) directs the Federal Emergency Management Agency (FEMA) to begin paying additional unemployment benefits from the Department of Homeland Security’s Disaster Relief Fund (DRF) at a rate of $400 per week on top of regular unemployment benefits. The enhanced unemployment benefits will be retroactive to August 1, 2020 and will continue until December 6, 2020 – or until the balance of the DRF drops to $25 billion – whichever happens first. According to the EO, there is currently about $70 billion in the DRF.

The DRF will cover $300 of the $400 weekly enhanced benefit – with states picking up the additional $100 per week from funds allocated to them from the Coronavirus Relief Fund (CRF) (created from the CARES Act).

Like the original benefits provided under the CARES Act, unemployed workers will be eligible for the new $400 per week if they otherwise qualify for regular unemployment compensation, Pandemic Emergency Unemployment Compensation (PEUC) under the CARES Act, Pandemic Unemployment Assistance (PUA) under the CARES Act, Extended Benefits, Short-Time Compensation, or several other discrete programs. However, unlike the previous Federal Pandemic Unemployment Compensation (FPUC) benefits, the EO disqualifies workers receiving less than $100 per week in unemployment benefits. Under the FPUC, workers who received at least $1 in unemployment benefits qualified for the additional $600 per week.

It is unclear when workers may see these enhanced unemployment benefits. While the EO makes clear that workers will be eligible for the enhanced benefits beginning the week ending August 1, 2020 (the FPUC benefits ended July 31, 2020), states will need time to get the new system set up and to receive funding. Once up and running, eligible workers will collect retroactive benefits, but that could be a matter of weeks, or months, in some cases. Like regular unemployment benefits, workers will apply through their individual state’s unemployment office and be subject to that state’s unemployment program requirements, such as any work search criteria.

There is also speculation that the President’s EO may be challenged on constitutional grounds. The EO invokes the President’s powers under the Stafford Disaster Relief and Emergency Assistance Act; however, constitutional scholars debate whether the invoked section can be used to fund unemployment benefits in this manner without the specific authorization of Congress. For now, however, eligible workers should continue to apply for their regular unemployment benefits through their state and comply with any state-specific eligibility requirements to remain qualified for the enhanced benefits.

See our complete COVID-19 Resource Collection.

The Complex Web of Employment Law Regulations Expands: The Latest COVID-19 Considerations for Massachusetts Employers 

July 29, 2020 Leave a comment

MLM Headshot Photo 2019 (M1341570xB1386)  AET Headshot Photo 2019 (M1344539xB1386)

In response to the COVID-19 outbreak, government regulators have created a web of legal requirements intended to promote employee safety and economic stability. The count, scope, issuance rate, and complexity of these new rules are unprecedented.

Compliance with this ever-expanding, and sometimes inconsistent, landscape of COVID-19 regulations is a clear and present challenge for employers.

We’ve prepared a summary of the most recent COVID-19 regulations that apply to Massachusetts employers, as of July 2020. It is critical that Massachusetts employers identify, understand, and comply with these standards.

Learn more in our COVID-19 Alert.

OSHA Publishes Guidance on Returning to Work

June 26, 2020 Leave a comment

AET Headshot Photo 2019 (M1344539xB1386)By: Amanda E. Thibodeau

On June 18, 2020, the Occupational Safety and Health Administration (OSHA) published Guidance on Returning to Work (the “Guide”). The Guide, just as with other recent COVID-19-related OSHA publications, was published as recommendations meant to assist employers, and does not impose new regulations or standards.

The Guide supplements OSHA’s previously published Guidance on Preparing Workplaces for COVID-19, and expands on the three-phased re-opening approach articulated in the White House’s Opening Up America Again:

  • Phase 1: Businesses should encourage telework where feasible. Where not feasible, businesses should consider limiting the number of people in the workplace to maintain proper social distancing. Flexibilities and accommodations for employees who are at high-risk of contracting the virus should be considered.
  • Phase 2: Businesses should continue to allow telework but can begin to ease up on social distancing protocols at the workplace.
  • Phase 3: Businesses may resume without restrictions at the workplaces.

The Guide then identifies nine key areas employers should assess when creating their re-opening plans, and provides examples to guide employers in each area:

  • Hazard assessment
  • Hygiene
  • Social distancing
  • Identification and isolation of sick employees
  • Return to work after illness or exposure
  • Controls
  • Workplace flexibilities
  • Training
  • Anti-retaliation

The Guide is not meant to cover every scenario or to provide the only solution to the various challenges that businesses may encounter when re-opening. Employers reviewing the Guide should keep in mind that that the Guide provides recommendations that should be read in the context of local re-opening regulations and recommendations from the CDC. It is important to keep up-to-date with the state and local orders and implement those directives within this framework provided by OSHA.

For more information, please contact Amanda Thibodeau.

EEOC Updates COVID-19-Related Employer Guidance on Antibody Testing

June 26, 2020 Leave a comment

AET Headshot Photo 2019 (M1344539xB1386)By: Amanda E. Thibodeau

The U.S. Equal Employment Opportunity Commission (“EEOC”) again updated its employer guidance related to COVID-19 late last week, this time with guidance related to employers requiring antibody testing before allowing employees to return to the workplace.

The EEOC previously released guidance allowing employers to conduct temperature checks on employees and to inquire about COVID-19-related symptoms as part of their outbreak mitigation strategies. The EEOC also advised employers that they could require employees to test for COVID-19 prior to returning to the workplace. These are temporary practices that are typically disallowed by the Americans With Disabilities Act (ADA).

The EEOC clarified now, however, that based on guidance from the Centers for Disease Control (CDC), employers cannot require antibody testing before allowing employees to return to the workplace. Antibody testing, the EEOC advises, is considered a medical examination under the ADA and does not meet the “business necessity” standard. Employers may still require viral testing to determine of an employee has an active COVID-19 case, but antibody testing is strictly disallowed.

Morse is focused on assisting our clients through these unprecedented and challenging times. Please contact the Firm should you have questions concerning this subject, or any other COVID-19 response matters.

EEOC Updates COVID-19-Related Employer Guidance

June 15, 2020 Leave a comment

AET Headshot Photo 2019 (M1344539xB1386)The U.S. Equal Employment Opportunity Commission (“EEOC”) again updated its employer guidance related to COVID-19 late last week, this time with guidance related towards warning employers against falling into traps related to age discrimination or age bias when bringing employees back to work facilities, as well as discrimination based on other factors such as race or national origin, and pregnancy and sex.

Learn about the EEOC’s specific guidance related to age discrimination, harassment and discrimination based on race or national origin, and pregnancy and sex discrimination in our COVID-19 Alert.

OSHA Updated Response Plan and Updated Reporting Requirements for COVID-19

May 28, 2020 Leave a comment

AET Headshot Photo 2019 (M1344539xB1386)The Occupational Safety and Health Administration (OSHA) issued updated guidance including an Updated Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19), and updated reporting requirements for employers to report work-related cases of COVID-19. As employers begin re-opening and bring employees back to work (and for those essential businesses continuing to operate), employers should keep these updates from OSHA in mind in forming their COVID-19 response plans.

Learn about the OSHA updates in our COVID-19 Alert.

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DOL Issues New Final Rule on Fluctuating Workweek Calculations

May 28, 2020 Leave a comment

AET Headshot Photo 2019 (M1344539xB1386)The U.S. Department of Labor (DOL) issued a final rule under the Fair Labor Standards Act (FLSA) allowing employers to offer bonuses, hazard pay, and other premium pay to employees whose hours, and regular rate of pay, vary from week to week. The final rule seeks to clarify the calculation of overtime pay for salaried, non-exempt employees who work hours that vary each week (known as the “fluctuating workweek”).

The DOL sought to clarify the rules around the fluctuating workweek now as employers bring employees back to work and implement new procedures for social distancing, such as with flexible or variable schedules.

Continue reading in our COVID-19 Alert.

 

EEOC Announces Delay in EEO Data Collections

May 11, 2020 Leave a comment

AET Headshot Photo 2019 (M1344539xB1386)By: Amanda E. Thibodeau

The U.S. Equal Employment Opportunity Commission (“EEOC”) announced that it will delay the collection of 2019 EEO-1 Component 1 data and the 2020 EEO-3 and EEO-5 data due to COVID-19. The EEOC stated that it recognizes the challenges that EEO filers are currently facing, and that delaying the collection will assist with the filers’ ability to provide accurate and timely data.

The EEOC expects that the collections may begin in March 2021, but will notify filers of the exact date when it is determined.

Morse is focused on assisting our clients through these unprecedented and challenging times. Please contact the Firm should you have questions concerning this subject, or any other COVID-19 response matters. You can find our complete COVID-19 resource collection here.

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EEOC Issues Guidelines with Respect to COVID-19 “Higher Risk” Employees

May 11, 2020 Leave a comment

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The Centers for Disease Control and Prevention has identified certain groups of individuals as “higher risk” for severe illness from COVID-19.

A growing number of states have effected, or have announced, plans that relate to an easing of shelter-in-place and business closure orders. Many of these plans incorporate specific instructions that relate to higher risk employees, including instructions that exclude higher risk employees from worksites, under certain circumstances.

As emphasized in a recent federal Equal Employment Opportunity Commission (“EEOC”) guidance, state re-opening standards that relate to higher risk employees must be interpreted, and applied by employers, in accordance with federal Americans with Disabilities Act anti-discrimination standards.

Employment law attorneys Matt Mitchell and Amanda Thibodeau summarize the EEOC Guidance in our COVID-19 Alert.

CDC Recommends New Workplace Sanitation Standards

May 5, 2020 Leave a comment

MLM Headshot Photo 2019 (M1341570xB1386)By: Matthew L. Mitchell

The Centers for Disease Control and Prevention (CDC) has issued new Guidance related to the re-opening of public spaces, workplaces, businesses, schools, and homes following COVID-19 shutdowns. Among other instructions, the Guidance offers very specific workspace sanitation standards that are designed to address continuing COVID-19 infection risks.

It is anticipated that this CDC Guidance will be a bedrock component of state and federal government policies related to the re-opening businesses following COVID-19 shutdowns. As such, it is critical that employers understand, and be in a position to execute on, the recommendations contained in the Guidance.

Of particular note, the Guidance instructs employers to:

  • Develop formal sanitation plans that include strategies, that are customized for the specific elements of the employer’s workplace, for cleaning and disinfecting employee environments in preparation for, and following, business re-openings.
  • Use specific, recommended disinfectant techniques for particular environments and surfaces.
  • Adopt formal safe behavioral practices, including social distancing and employee hygiene and PPE standards.
  • Consider changes to practice and procedures aimed at reducing infection risk, including changes to the way and frequency public spaces are used.

The Guidance includes a Cleaning and Disinfection Decision Tool that distills the advice into a form that may be incorporated into an employer policy document.

Morse is focused on assisting our clients through these unprecedented and challenging times. Please contact the Firm should you have questions concerning this subject, or any other COVID-19 response matters.

MA Governor Extends Non-Essential Business Closings Until May 18, 2020

April 29, 2020 Leave a comment

AET Headshot Photo 2019 (M1344539xB1386)By Amanda E. Thibodeau

Massachusetts Governor Charlie Baker extended his previous emergency order to close non-essential businesses and his stay-at-home advisory until May 18. His previous order closed non-essential businesses until May 4. The press release can be found here.

Along with extending the closure of non-essential businesses, the order also extends the stay-at-home advisory, urging residents to stay at home and limiting all gatherings to 10 people or less until May 18.

Governor Baker also appointed a 17-person re-opening advisory board who will plan a phased re-opening of the state. The new board is comprised of leaders from government, business, and healthcare sectors.

The Morse Employment Law team is following the latest developments related to COVID-19 responses, and will continue to report as appropriate. You can find our complete COVID-19 resource collection here.

The Post-Quarantine Workplace: Practical Considerations Related to the Re-Call of Employees to the Worksite

April 27, 2020 Leave a comment

MLM Headshot Photo 2019 (M1341570xB1386)As employers continue to navigate unprecedented economic challenges – with possible easing of shelter-in-place and business closure orders in the coming weeks – one thing is clear: A return to normal business operations, in any short-term scenario, is unlikely. 

Employers will soon face very difficult decisions concerning the re-opening of worksite locations and the re-calling of employees. To help prepare for this eventuality, Matthew Mitchell has identified common themes and subjects employers may encounter in the  Post-Quarantine Workplace including worksite preparation, change management, government relief opportunities and employment law compliance considerations.

Read our full COVID-19 Alert for our Return-to-Work Guide.

Unemployment Options Under the Massachusetts Emergency Regulations

April 27, 2020 Leave a comment

AET Headshot Photo 2019 (M1344539xB1386)Currently, 26 million Americans have requested unemployment benefits since the outbreak of the coronavirus pandemic. Federally, the CARES Act provides new and expanded emergency options, which are being adopted and implemented by individual states. At the state level, Massachusetts has put into effect Emergency Regulations to assist both employees and employers with unemployment insurance during COVID-19 and to help implement portions of the CARES Act. For Massachusetts employers trying to put their employees in the best position to maintain wage rates, the following options and strategies are available to help:

  • Federal Pandemic Unemployment Compensation (FPUC)
  • Pandemic Unemployment Assistance (PUA)
  • Furloughs and Standby Status
  • Short-Term Compensation Programs (or Work Share Programs)
  • Other Important Provisions

Amanda Thibodeau explains each of these programs and qualifying criteria in our recent COVID-19 Alert.

PPP Loan Program: Analysis of Treasury Department Interim Final Rule on Affiliation; Impact on Portfolio Companies

April 6, 2020 Leave a comment

MLM Headshot Photo 2019 (M1341570xB1386)By: Matthew L. Mitchell

On April 3, 2020, the United States Treasury Department issued “Interim Final Rules” and a related guideline concerning the Paycheck Protection Program’s “Affiliation Rule.”   The Interim Final Rule and guideline may be found here:

The instructions included in the Interim Rule and Guideline significantly limit, by application of the Affiliation Rule, the types of businesses that are eligible to apply for loans under the Paycheck Protection Program.  Of particular note:  The Interim Rule and Guideline apply the restrictions of the Affiliation Rule to start-up and emerging businesses, likely precluding many such companies from access to PPP loans funds.

The Morse Employment Law team is following this topic closely. Read our latest COVID-19 Alert for more information.

DOL Releases New Guidance for Compliance with CARES Act and FFCRA

April 3, 2020 Leave a comment

AET Headshot Photo 2019 (M1344539xB1386)By: Amanda E. Thibodeau

The U.S. Department of Labor (DOL) announced new guidance to help states with administration of the new unemployment provisions part of the Families First Coronavirus Response Act (FFCRA). It also updated and added additional guidance for the paid sick leave and expanded family and medical leave implementation under the FFCRA.

The new unemployment guidance provides help to states in implementing the temporary emergency state staffing flexibility provision of the CARES Act. It also provides help to states in determining eligibility requirements for applicants – especially in the area of gig workers and independent contractors, who are not typically eligible for unemployment benefits. The new guidance can be found here.

The guidance added by the DOL for the paid sick leave and expanded family and medical leave implementation includes a webinar to help employers determine eligibility and answer other questions related to benefits and protections under the FFCRA. The DOL also added additional materials to its Questions and Answers and added more workplace posters in additional languages. You may view these new materials here.

The Morse Employment Law team is following this, and other matters related to COVID-19 responses, and will continue to report as appropriate.