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The CDC Revises COVID-19 Mask Recommendations For Fully Vaccinated Individuals: Implications For Massachusetts Employers
On July 27, 2021, the Centers for Disease Control and Prevention (“CDC”) revised its COVID-19 mask guidance (the “Revised Guidance”), recommending that all individuals, regardless of COVID-19 vaccination status, resume wearing masks in “public indoor settings” in areas of the United States that exhibit “substantial” or “high” COVID-19 transmission rates. This announcement revises the CDC’s May 2021 mask guidance that indicated that fully vaccinated individuals could discontinue mask wearing and social distancing in most settings.
At present, there are five counties in Massachusetts that qualify as “substantial” or “high” transmission areas, under the Revised Guidance:
High Transmission:
- Barnstable County
Substantial Transmission:
- Bristol County
- Dukes County
- Nantucket County
- Suffolk County
The Revised Guidance does not specifically define the types of “public indoor settings” where masks should be worn. As such, it is unclear as to whether the Revised Guidelines are intended to apply to work environments.
Currently, Massachusetts requires masks only in the following settings: Public and Private Transportation; Healthcare Facilities; Congregate Care Facilities; Emergency Shelters; Houses of Correction; Health Care and Day Services Facilities. There is no general mask mandate in Massachusetts, and there are no rules that require masks or social distancing, generally, in work environments. This present Massachusetts standard is expressly based on the CDC’s prior May 2021 mask guidance. However, in recent public remarks, Massachusetts Governor Charlie Baker has indicated that the Commonwealth is now considering new general safety standards in light of the Revised Guidelines.
Employers should continue to monitor applicable regulations and reopening guidance, including masking requirements and recommendations, in jurisdictions where they are located.
See our complete COVID-19 Resource Collection for additional information, or contact a member of the Morse Employment Team.
Massachusetts Advances To Step 1 Of Phase IV; Replaces Travel Order With Travel Advisory: What Employers Need To Know Now
On March 22, 2021, Massachusetts Governor Charlie Baker implemented “Step 1 of Phase IV” of the Commonwealth’s phased economic re-opening plan – authorizing several previously closed business sectors, such as performance venues and exhibition halls, to recommence limited operations. The transition to Step 1, Phase 4 is triggered by the recent decrease in COVID-19 infection and hospitalization rates, and the recent increase in public access to vaccines, across the Commonwealth.
Coincident with the implementation of the Step 1, Phase 4 plan, the Commonwealth has issued revised COVID-19 standards that apply to employee safety, including adjustments to worksite social distancing and hygiene standards, and a scaling-back of travel restrictions.
Read our full COVID-19 Alert for a summary of these new regulations.
Employment Law Round-Up: What Massachusetts Employers Need to Know For Q4 2020
By Matthew L. Mitchell and Amanda Thibodeau
With a work environment pressurized by the COVID-19 crisis and a contentious election cycle, employers are finding themselves increasingly involved with unusual employee conflicts and complicated employment law compliance questions. This can be particularly disruptive during the closing months of the business year.
The following summary discusses a variety of key concepts and new employment law standards that are intended to support Massachusetts employers in avoiding and navigating issues that may arise in the closing months of 2020. Topics include: Politics in the workplace, employee social media activity, responding to worksite infections, workplace safety, Massachusetts Paid Family Medical Leave, and unemployment insurance fraud.
Employment law attorneys Matt Mitchell and Amanda Thibodeau summarize these standards here.
MA Governor Extends Non-Essential Business Closings Until May 18, 2020
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.
MA Governor Extends Non-Essential Business Closings Until May 4, 2020
Massachusetts Governor Charlie Baker extended his previous emergency order to close non-essential businesses and his stay-at-home advisory until May 4. His previous order closed non-essential businesses until April 7.
The new emergency order will take effect at noon on Wednesday, April 1. Governor Baker also extended his order limiting all gatherings to 10 people or less until May 4.
Governor Baker also updated the “COVID-19 Essential Services” list, based on new federal guidance. The new list will also go into effect on April 1 at noon. See the updated list on essential businesses.
The Morse Employment Law team is following the latest developments related to COVID-19 responses, and will continue to report as appropriate.
IRS, DOL, and Treasury Issue Plan on Implementation of Payroll Tax Credit, Paid Leave and Other Employment-Related Provisions of the Families First Coronavirus Response Act
The Internal Revenue Service (IRS), U.S. Department of Labor (DOL), and U.S. Treasury Department issued a joint statement highlighting the employment-related provisions of the Families First Coronavirus Response Act (“the Act”), which was signed into law by President Trump on March 18, 2020 (see our previous alert on this subject here). The three departments offered a preview for small and mid-size businesses related to the implementation of these various provisions. A summary of their highlights is below.
- DOL plans to release regulations relating to the Act by April. While employers are not required to comply with the Act until April 2, the DOL and IRS made clear that employers, unless exempted, may begin to provide paid leave under the Act and take advantage of the available tax credits immediately. The anticipated regulations will provide further guidance on the sick and child care leave requirements of the Act.
- DOL plans to release emergency guidance related to small business exemptions related to leave. The Act provides an exemption for businesses with less than 50 employees from leave requirements related to school and daycare closings where the leave requirements would threaten the viability of the business. The DOL plans to issue guidance with “simple and clear criteria” on the qualifications related to this exemption.
- DOL will be issuing a temporary non-enforcement policy to allow employers to come into compliance. Under the temporary policy, the DOL will not bring enforcement actions against employers for violations of the Act, but instead will work with employers to assist in compliance with the Act, provided the employer has acted reasonably and in good faith.
- The IRS will be releasing guidance later this week about how employers can obtain the tax credits related to providing sick or child care leave. In short, employers will obtain the credit by withholding the amount of money equal to the cost of leave provided from their payroll taxes, rather than depositing with the IRS. If the amount withheld is not enough to cover the paid leave provided, employers will be able to file a request for payment on an accelerated basis, to be processed in two weeks or less. The IRS will release further details on the procedure in their anticipated guidance.
The Morse Employment Law team is following this, and other matters related to COVID-19 responses, and will continue to report as appropriate.
Equal Opportunity Commission Issues Updated Guidance Related to COVID-19 Preparedness for “Essential Businesses”
The federal Equal Employment Opportunity Commission (the “EEOC”) has issued revised guidelines that define Americans with Disabilities Act (“ADA”) compliance standards for employers operating under current COVID-19 pandemic conditions.
In general, the ADA broadly restricts business decisions that consider employee health or medical conditions. Through the guidelines, the EEOC has temporarily suspended certain ADA restrictions in an effort to permit “Essential Businesses” – businesses that are exempted from various shelter-in-place and business restrictions order now in effect in several regions – to adopt practical strategies to maintain safe business operations.
Several of the key concepts are below:
- With respect to employee inquiries regarding COVID-19 symptoms: “An employer may send home an employee with COVID-19 or symptoms associated with it. Employers may ask employees who report feeling ill at work, or who call in sick, questions about their symptoms to determine if they have or may have COVID-19.”
- With respect to workplace infection control strategies: “Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions as of March 2020, employers may measure employees’ body temperature. As with all medical information, the fact that an employee had a fever or other symptoms would be subject to ADA confidentiality requirements. Similarly, with respect to the current COVID-19 pandemic, employers may follow the advice of the CDC and state/local public health authorities regarding information needed to permit an employee’s return to the workplace after visiting a specified location, whether for business or personal reasons.”
- With respect to reasonable accommodation requests by employees that are unrelated to COVID-19: “The rapid spread of COVID-19 has disrupted normal work routines and may have resulted in unexpected or increased requests for reasonable accommodation. Although employers and employees should address these requests as soon as possible, the extraordinary circumstances of the COVID-19 pandemic may result in delay in discussing requests and in providing accommodation where warranted. Employers and employees are encouraged to use interim solutions to enable employees to keep working as much as possible.”
- With respect to hiring practices during COVID-19 pandemic: “An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job. This ADA rule allowing post-offer (but not pre-offer) medical inquiries and exams applies to all applicants, whether or not the applicant has a disability.”
The Morse Employment Law team is following this, and other matters related to COVID-19 responses, and will continue to report as appropriate.
Massachusetts Governor Orders “Non-Essential” Businesses To Close Physical Workplaces By Tuesday, March 24
On March 23, 2020, Massachusetts Governor Charlie Baker issued an Emergency Order requiring all businesses and organizations that do not provide “COVID-19 Essential Services” to close their physical workplaces and facilities to workers, customers and the public.
The Emergency Order goes into effect on Tuesday, March 24th at noon, and remains in effect until Tuesday, April 7th, or until otherwise ordered.
Please refer to the list of “COVID-19 Essential Services” that are exempted from the Emergency Order.
Businesses that are designated as “Essential” are directed to follow social distancing protocols for workers in accordance with guidance from the Massachusetts Department of Public Health, as aggregated at the following sites:
COVID-19 Prevention and Treatment
COVID-19 Guidance and Directives
Businesses and organizations not on the list of essential services are encouraged to continue operations through remote means that do not require workers, customers, or the public to enter or appear at workplace premises impacted by the Emergency Order.
Information concerning this Emergency Order is developing.
The Morse Employment Law team is following this, and other matters related to COVID-19 responses, and will continue to report as appropriate.
Resources for Employers Managing the Impact of COVID-19
COVID-19 is causing significant disruption at every level of business – and responses are varying and evolving rapidly. Morse is monitoring the situation closely on behalf of our clients. To help keep you as up to date as possible, below we provide some helpful federal and state resources to help you and your business keep up on the latest as well.
- Equal Employment Opportunity Commission (EEOC)
- The U.S. Department of Labor (DOL)
- Massachusetts Attorney General’s Office
- Massachusetts Department of Unemployment Assistance (DUA)
See our website for additional information regarding these resources.
Congress Adopts Emergency Paid Family Medical Leave and Sick Time Standards; Contemplates Payroll Tax Deductions and Cash Payments to Offset Employer Costs
By: Matthew Mitchell
Governor Issues Emergency Orders that Require Most MA Employers to Modify Business Operations
On Sunday, March 15, 2020, Massachusetts Governor Charlie Baker announced emergency orders in response to the Coronavirus outbreak, that directly affect Massachusetts employers.
Specifically, the Governor directed, in material part:
- A suspension of educational operations at all public and private elementary and secondary schools in the Commonwealth;
- A prohibition of gatherings of over 25 people, including, but not limited to, community, civic, public, leisure, faith-based events, sporting events with spectators, concerts, conventions, fundraisers, parades, fairs, festivals, and any similar event or activity that brings together 25 or more persons in a single room or single space. (This prohibition expressly prohibits gatherings of more than 25 people in open work spaces, such as conference rooms.)
The Governor’s emergency orders take effect on Tuesday, March 17, 2020, and are scheduled to remain in place through April 5, 2020, unless otherwise ordered.
Read the following Employment Law Alert for more information.
Read the following article on Force Majeure in Light of the Coronavirus Outbreak.
Coronavirus Response Update – March 13, 2020
By: Matthew Mitchell
The Coronavirus outbreak is creating unprecedented challenges for employers. Existing employment law standards and structures do not contemplate our present circumstances, and employers are increasingly faced with novel questions with respect to employee relations.
We are beginning to see some clarity on the subject, however. As government and organizational actors begin to deploy response strategies, best employment practices regarding Coronavirus concerns are emerging.
Matthew Mitchell provides answers to several common questions regarding the Coronavirus in the following COVID-19 Client Alert.
The Morse Employment Law Team is following this topic closely. Please contact us should you have any questions.
Coronavirus Response Update – March 12, 2020
In recent days, we have seen increased incidents of COVID-19 infections in Massachusetts and around the United States, and extraordinary actions from federal, state, and organizational actors in response to the outbreak – including the announcement by the White House last evening of a European travel ban, and the proposed suspension of all Social Security payroll taxes.
We are fielding many inquiries from concerned and confused private-sector clients concerning appropriate response strategies.
As outlined in our prior Alert on the subject, it should be emphasized that, at this time, there are no legal directives, related to Coronavirus, that apply generally to restrict the business operations of private-sector employers. Rather, there are government-issued guidelines and recommendations that place the burden on employers to adopt their own common-sense measures, within existing legal rules. For example:
- The Federal Department of Labor and OSHA have issued guidance on how “Preparing Workplaces for COVID-19” – https://www.osha.gov/Publications/OSHA3990.pdf
- The EEOC has issued guidance on employee protections under the ADA in the event of a pandemic – https://www.eeoc.gov/facts/pandemic_flu.html
That said, it has been reported that Federal and state governments are now considering emergency orders that would regulate and limit operations of private-sector employers, including directives that would require temporary closures of some workplaces. As such, we believe it is prudent that employers begin now to plan for such contingencies.
The Morse Employment Law Team is following this topic closely. Please contact us should you have any questions.
Coronavirus Response Update – March 11, 2020
By: Matthew Mitchell
In response to increased incidents of COVID-19 infections in the Commonwealth, on Tuesday, March 10, 2020, Governor Charlie Baker declared a State of Emergency in Massachusetts. The State of Emergency declaration is, in essence, an activation of the Governor’s emergency powers – meaning that the Governor may now order certain directives and allocate certain resources, to respond to the Coronavirus outbreak, outside of regular legislative processes.
The Governor has issued a directive that applies to the Commonwealth’s Executive Branch. Matthew Mitchell explains what this directive to public-sector employers entails in the following client alert.
The Morse Employment Law Team is following this topic closely. Please contact us should you have any questions.
3/6/20 – Client Alert: Recommended Employer Response to the Coronavirus
By: Amanda Thibodeau
The spread of coronavirus (COVID-19), and its effects on business markets, travel, and public health, are dominating the news cycle. As this public health emergency continues to develop, it is critical that employers adopt measured policies that promote safe working environments, and that employers identify and execute on strategies to limit business interruptions.
The Centers for Disease Control and Prevention (“CDC”) has released an interim guidance for private sector employers that relates to the management of coronavirus concerns. The core themes of the guidance include: promoting use of sick time, cleaning work spaces and encouraging good hygiene, restricting travel, etc.
Read Amanda Thibodeau’s client alert for more information and further guidance on the management of coronavirus concerns.
A New Year’s Reminder: Discretionary, End-Of-Year Bonuses and the Massachusetts Equal Pay Act
By: Matthew Mitchell
The discretionary, end-of-year bonus is the most common form of incentive compensation. When executed well, the discretionary bonus provides employers with the opportunity to reward employee success. However, when executed poorly, even a well-intentioned discretionary bonus may result in significant employment law liability.
The recent passage of the Massachusetts Equal Pay Act, M.G.L. c. 149, §105A (the “Act”), complicates the compliance landscape that applies to discretionary bonuses. As January bonus season kicks off, employers are well-served to understand the restrictions that the Act imposes on discretionary bonuses.
Review our Employment Team’s recent Employment Law Alert to learn how the Act regulates the type of compensation structures employers may apply to their Massachusetts employees.
For more information, please contact Matthew Mitchell or Amanda Thibodeau.
New Minimum Wage Rate for Massachusetts Employees Effective January 1, 2020
By: Amanda Thibodeau
With the new year comes a new minimum wage rate for Massachusetts non-exempt employees. As of January 1, 2020 the minimum wage rate is now $12.75 per hour, and $4.95 per hour for tipped employees. Employers with Massachusetts-based non-exempt employees should update their payroll provider to reflect the increase – and be sure to use the new rate when calculating any earned overtime.
The change comes from a 2018 bill signed by Governor Baker that gradually increases the minimum wage rate until it reaches $15.00 per hour in 2023 ($6.75 per hour for tipped employees).
For more information, please contact Matthew Mitchell or Amanda Thibodeau.
Amanda Thibodeau Speaking on MCLE Program on Employment Law Issues for Gig Workers
Employment attorney Amanda Thibodeau will be speaking on the MCLE program Employment Law Issues for Gig Workers, being held on Tuesday, July 30. The program will provide an overview of the current state of the law, how various governing bodies on the state and federal levels have grappled with companies and workers in the gig economy, and how each side can protect themselves and navigate changing employment laws in this arena. The agenda will include topics of discussion such as:
- What is the “Gig Economy” and which employers and workers fall into this category
- Overview of classifications of workers and legal consequences of misclassification
- Reviewing recent state and federal guidance on classification issues
- Reviewing states’ legislative responses governing gig employment
- Understanding other common employment issues in the gig economy
- Understanding how a gig business can mitigate its risks and what workers should do to protect themselves
For more information and to register, view the MCLE event page.
Massachusetts Paid Family and Medical Leave Update: Governor Baker and Legislative Leaders Issue Joint Statement Delaying Employer Contributions
By: Amanda Thibodeau
On June 11, 2019, Massachusetts government leaders announced their intent to amend the Massachusetts Paid Family and Medical Leave Act (the “PFMLA”) to delay the employer payroll tax contribution start date, required by the PFMLA, to October 1, 2019 (from the prior start date of July 1, 2019). In connection with the announcement, Governor Charlie Baker, Senate President Karen Spilka, and House Speaker Robert DeLeo issued the following joint statement:
“To ensure businesses have adequate time to implement the state’s Paid Family and Medical Leave program, the House, Senate, and Administration have agreed to adopt a three month delay to the start of required contributions to the program. We will also adopt technical changes to clarify program design. We look forward to the successful implementation of this program this fall.”
The announcement appears to be a response to concerns raised by industry groups related to compliance deadlines associated with the rollout of PFMLA. The changes to the PFMLA described in the announcement still require confirmation by both the House and Senate, and the scope of the other “technical changes” to the PFMLA anticipated in the announcement remains unclear.
Morse is monitoring developments concerning the PFMLA, and will provide further updates as appropriate. For additional information concerning the PFMLA, please see Morse’s prior alerts on the subject:
For more information, please contact Matthew Mitchell or Amanda Thibodeau.
DOL Issues Opinion Letter Classifying Workers in the Gig Economy As Independent Contractors
The U.S. Department of Labor (DOL) recently issued an Opinion Letter analyzing the classification of workers in the virtual marketplace or “gig economy.” This refers to companies that operate in the “on-demand” or “sharing” economy, using online and smartphone applications to connect consumers to service providers in a wide variety of services, such as transportation, cleaning, delivery, and shopping.
The DOL was asked to analyze the classification of such service providers under the Federal Labor Standards Act (FLSA), ultimately deciding that based upon the facts provided by the unidentified company in question, the service providers were independent contractors.
This is vitally important in that independent contractors are not afforded the same protections under the FLSA as employees. For example, employees are entitled to minimum wage, overtime pay, and other benefits under the FLSA, while independent contractors are not. Continue reading in our Employment Law Alert.
Massachusetts Employment Law Blog 