MA Governor Extends Non-Essential Business Closings Until May 4, 2020

April 1, 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 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.

DOL Issues Revised Emergency Paid Sick Leave Guidance; Limits Scope Of Small Business Exemption

March 31, 2020 Leave a comment

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

As previously reported in an earlier Employment Law Alert, the emergency paid sick leave provisions of the Federal Families First Coronavirus Act (the “FFCA”) take effect April 1, 2020.

In anticipation of that effective date, the federal Department of Labor (the “DOL”) has published a revised and expanded “Questions and Answers” Guidance (the “Guidance”) concerning the FFCA.

This guidance addresses 59 distinct subject matters that relate to the complex application of the FFCA.  Of particular note:  The Guidance defines the scope of the FFCA exemption that applies to employers with fewer than 50 employees.

The text of FFCA implies a general exemption, from the paid sick leave requirements of the FFCA, for employers with fewer than 50 employees, that are experiencing economic hardships as a result of the coronavirus outbreak.  Through the Guidance, the DOL adopts a narrowed interpretation of this small business exemption:

“A small business is exempt from certain paid sick leave and expanded family and medical leave requirements if providing an employee such leave would jeopardize the viability of the business as a going concern. This means a small business is exempt from mandated paid sick leave or expanded family and medical leave requirements only if the:

  • employer employs fewer than 50 employees;
  • leave is requested because the child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; and
  • an authorized officer of the business has determined [certain financial exigencies exist.]”

Guidance, Q&A 59.

As such, unlike previous reports, small businesses are not broadly exempt from FFCA emergency paid leave requirements, and must provide employees with emergency paid leave benefits absent the limited exceptions described above. For example, under the Guidance, a small business is required to provide 80 hours of emergency paid sick leave to an employee that is absent from work as a result of a COVID-19 related illness.

In addition to the Guidance, in the coming days, the Internal Revenue Services is expected to publish instructions related to tax credits available to employers that incur expenses related to FFCA emergency leaves.

The rules and guidelines that relate to the FFCA, and to the other federal and state coronavirus relief programs, are moving targets.  The Morse Employment Law team is following these, and other matters related to COVID-19 responses, and will continue to report as appropriate.

Read our latest COVID-19 Alert.

DOL Releases New Fact Sheets and FAQs for Compliance with Families First Coronavirus Response Act

March 25, 2020 Leave a comment

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

The U.S. Department of Labor (DOL) released its first wave of new guidance as part of its initiative to help employers implement and comply with the new Families First Coronavirus Response Act (“the Act”).

The DOL posted a Fact Sheet for Employees, a Fact Sheet for Employers and a Questions and Answers document on a number of compliance aspects of the Act, including how an employer counts the number of their employees to determine coverage; how small businesses can obtain an exemption; how to count hours for part-time employees; and how to calculate the wages employees are entitled to under this law.

The DOL expects to release further guidance on these topics later this week. Additional DOL guidance on COVID-19-related topics, including new workplace posters can be found here.

The Morse Employment Law team is following this, and other matters 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

March 24, 2020 Leave a comment

AET Headshot Photo 2019 (M1344539xB1386)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”

March 24, 2020 Leave a comment

MLM Headshot Photo 2019 (M1341570xB1386)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.

Revised EEOC guidelines.

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

March 23, 2020 Leave a comment

MLM Headshot Photo 2019 (M1341570xB1386)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

Revised Guidance Regarding The Order By The Governor Prohibiting Assemblages Of More Than 10 People And On-Premises Consumption Of Food And Beverages

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

March 20, 2020 Leave a comment

2015-01-05_8-57-41By: Amanda E. Thibodeau

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

March 19, 2020 Leave a comment

2015-01-05_8-57-41By: Matthew Mitchell

On March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act (the “Act”), which aggregates several new laws that apply to private-sector employers and employees affected by Coronavirus-related work disruptions.
The Act takes effect no later than 15 days after enactment, and remains in place until December 31, 2020.
Two significant provisions of the Act include: The Emergency Family and Medical Leave Expansion Act (The “EFMLEA”) and The Emergency Paid Sick Leave Act (The “EPSLA”).
Read more about these new laws in our latest Employment Law Alert.

Governor Issues Emergency Orders that Require Most MA Employers to Modify Business Operations

March 16, 2020 Leave a comment

2015-01-05_8-57-41On 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

March 13, 2020 Leave a comment

MLM Headshot Photo 2019 (M1341570xB1386)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

March 12, 2020 Leave a comment

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:

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

March 11, 2020 Leave a comment

MLM Headshot Photo 2019 (M1341570xB1386)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

March 6, 2020 Leave a comment

AET Headshot Photo 2019 (M1344539xB1386)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

January 8, 2020 Leave a comment

MLM Headshot Photo 2019 (M1341570xB1386)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

January 6, 2020 Leave a comment

AET Headshot Photo 2019 (M1344539xB1386)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.

Round Up of Noncompete Reform Coming to New England

September 27, 2019 Leave a comment

2015-01-05_8-57-41Noncompete reform is taking over the country as more and more states – including four in New England – are making the decision to enact new laws restricting the use of noncompetition agreements by employers. Maine, New Hampshire, and Rhode Island all recently passed legislation that is expected to take effect soon, and a similar bill is pending in Vermont as well. Dates of note include:

  • In June 2019, Maine’s governor signed into law LD 733: An Act To Promote Keeping Workers in Maine. This new law took effect September 18, 2019.
  • On July 11, 2019, New Hampshire’s governor signed S.B. 197 into law, which amends New Hampshire’s previous statute governing the use of noncompetition agreements. The amended law took effect on September 8, 2019.
  • On July 15, 2019, Rhode Island’s governor signed RI H6019 – the Rhode Island Noncompetition Agreement Act, which will go into effect on January 1, 2020.
  • In January 2019, H.1 was introduced in the Vermont legislature. The bill was referred to the Vermont House Committee on Commerce and Economic Development, where it remains as of today.

Noncompete reform is gaining popularity, with more states likely to join in soon. Similar legislation has been proposed on the federal level as well, although the current federal bill, the Federal Freedom to Compete Act, has not gained much support yet and is currently sitting in the Senate Health, Education, Labor, and Pensions Committee.

Our Employment Law Alert explains the full extent of the bills and how they may affect you.

DOL Issues New Final Rule for Exempting Executive, Administrative, and Professional Employees under the FLSA

September 24, 2019 Leave a comment

By: Amanda Thibodeau

AET Headshot Photo 2019 (M1344539xB1386)The Department of Labor (DOL) released a final rule today, updating its regulations under the Fair Labor Standards Act (FLSA).  The final rule raises the threshold salary and annual compensation levels for exempting executive, administrative, and professional employees, including raising the “standard salary level” for exempting executive, administrative, and professional employees from the currently enforced level of $455 per week (the equivalent of $23,660 per year for a full-year worker) to $684 per week (the equivalent of $35,568 per year for a full-year worker).  It further allows employers the ability to apply a portion of bonuses or commissions received by those employees towards that salary level, for purposes of meeting the exemption. The final rule will be effective January 1, 2020.  For more information, or to review the final rule itself, visit the DOL’s announcement here.

For more information, please contact Matthew Mitchell or Amanda Thibodeau.

Artificial Intelligence in Recruiting and Hiring

August 21, 2019 Leave a comment

By: Amanda Thibodeau

Tommorowland Today:  The Illinois Legislature Responds to the Rise of A.I. in the Employment Sphere

AET Headshot Photo 2019 (M1344539xB1386)Artificial Intelligence, or AI, is no longer just a sci-fi movie device.  This branch of computer science has grown to become an essential part of the technology industry.  You may recognize your own use of AI in products such as Apple’s Siri, Amazon Echo, or Netflix, which all use learning and predictive technology to get smarter and learn your likes, dislikes, interests, and behavior.

AI has recently stepped into the recruiting and hiring world, with new platforms available to employers to collect, store, and use data to screen a candidate’s facial expressions and gestures, analyze their voice, speech patterns, and knowledge on a particular subject, and evaluate a candidate’s personality and predict their fit for a role.  As with other AI technology, the more candidates the AI platform interviews, the smarter it gets in its analyses.

Illinois is the first state to respond to the rise of such use of these AI platforms.  In May 2019 Illinois passed the Artificial Intelligence Video Act (“the Act”), which goes into effect January 1, 2020.  Under the Act, an employer wishing to use an AI platform to analyze a candidate’s interview must comply with several requirements:

  • Employer must notify the candidate that their interview will be videotaped and may be analyzed using AI;
  • Employer must obtain consent to analyze the video using AI;
  • Employer must provide information to the candidate on how the AI platform works and what it uses to evaluate candidates.

The Act applies to all candidates applying for an Illinois-based position, regardless of where the candidate is actually located.  The Act also prohibits employers from sharing the candidate’s video, “except with persons whose expertise or technology is necessary in order to evaluate an applicant’s fitness for a position.”  The candidate may also request that the video be destroyed within 30 days of a request.  This request also requires any recipient of the video to also destroy the video, including any electronically generated backup copies.

The Act itself is fairly short and does not contain any definitions or much guidance on interpretation.  Illinois is the first state to respond legislatively to this new use of AI in the employment context, and is therefore charting the course for now.  As the use of AI continues to grow in all industries, it is likely that other states may be playing catch-up sooner rather than later, and will likely use Illinois’ new Act as a model.

For more information, please contact Matthew Mitchell or Amanda Thibodeau.

IEP Meetings Covered Under FMLA

August 15, 2019 Leave a comment

By: Amanda Thibodeau

DOL Issues New Opinion Letter On the Intersection of IEP Meetings and the FMLA

AET Headshot Photo 2019 (M1344539xB1386)

Most employers and their human resources specialists are acquainted with the protections afforded to employees under the Family and Medical Leave Act (FMLA).  Quite often employers interact with the FMLA when an employee needs time off of work to recover from an extended illness or other medical issue, or to care for an employee’s family member.  A trap for the unwary, however, presents itself in a new Opinion Letter issued by the Department of Labor on August 8, 2019.

The Opinion Letter (FMLA2019-2-A) responds to an anonymous request from the parents of a school-aged child inquiring whether the FMLA protects the parents’ ability to take time off of work to attend their children’s Individualized Education Program (IEP) meetings.  The DOL unequivocally reached the conclusion that parents’ attendance at such IEP meetings were covered by the protections of the FMLA.

In the facts presented to the DOL, the children had qualifying health conditions under the FMLA that were certified by the children’s doctors.  The children’s doctors had also provided documentation to the wife’s employer that the children required intermittent care that would require her to miss work on occasion.  The wife’s employer had previously granted the wife’s requests for leave under the FMLA to bring the children to medical appointments in accordance with these certifications; however, the employer refused to grant FMLA leave for the wife to attend the children’s IEP meetings with the school, which are held four times per year.

The DOL focused on several aspects of the FMLA including that the FMLA permitted leave “to care for” a family member with a serious health condition, including “to make arrangements for changes in care.” See 29 C.F.R. § 825.124(b).  In narrowing in on these clauses, the DOL also relied upon its previous opinion letter (FMLA94, 1998 WL 1147751 (Feb. 27, 1998)), which found an employee was entitled to take FMLA leave to attend “care conferences” related to her mother’s health conditions.  Similarly, the DOL found that wife’s attendance at the children’s IEP meetings was “clearly essential” to the children’s care and noted that the children’s doctors need not be present at these meetings to qualify for intermittent leave under the FMLA.

Employers or human resources specialists presented with similar situations should be mindful of this guidance when analyzing whether such leave requests qualify under the FMLA.  Proper training of managers is recommended, including on what types of school meetings are covered and which may not be, and what types of documentation the managers can request from the employee to support the leave request.

For more information, please contact Matthew Mitchell or Amanda Thibodeau.

Amanda Thibodeau Speaking on MCLE Program on Employment Law Issues for Gig Workers

July 10, 2019 Leave a comment

AET Headshot Photo 2019 (M1344539xB1386)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.