EEOC Announces Delay in EEO Data Collections
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.
EEOC Issues Guidelines with Respect to COVID-19 “Higher Risk” Employees
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
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
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
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
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
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:
- Interim Final Rule on Affiliation (the “Interim Rule”)
- Applicable Affiliation Rule Guideline (the “Guideline”)
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
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.
DOL Posts Temporary Rule Issuing Regulations on Families First Coronavirus Response Act
On April 1, 2020, the U.S. Department of Labor (DOL) posted a temporary rule issuing regulations on the Families First Coronavirus Response Act (FFCRA). In particular, the new regulations deal with implementation of the Emergency Paid Sick Leave Act (EPSLA) and Emergency Family and Medical Leave Expansion Act (EFMLEA) portions of the FFCRA. The regulations are temporary and will expire December 31, 2020, and will not affect the Family Medical Leave Act beyond that date.
The new regulations shed light on several important areas of the FFCRA.
Our COVID-19 Alert addresses a few key takeaways on the following topics:
- Self-quarantine
- Effect on FMLA Leave and Paid Time Off Used Concurrently
- Small Business Exemption
- Intermittent Leave
- Notice and Leave Documentation
The new regulations take effect immediately and contain many more details concerning the implementation of the FFCRA. Please see our previous Alert on the FFCRA for additional requirements under the new law, or reach out to our Morse Employment Law Team for help.
SBA Paycheck Protection Program (“PPP”)
By: Joseph E. Hunt
On March 31, 2020, the Department of the Treasury (“Treasury”) issued guidance for the Paycheck Protection Program (“PPP”), one of the hallmarks of the Coronavirus Aid, Relief and Economic Security (“CARES”) Act designed to provide up to $350 billion in short term loans to small businesses affected by the COVID-19 pandemic.
According to information provided by Treasury, while PPP loans can only be made by private lenders who are certified by the Small Business Administration (“SBA”), they are fully guaranteed by the SBA. These PPP loans are made for a two-year period, and provide a 0.5% fixed interest rate with repayments deferred for six months.
An applicant business is eligible to obtain a PPP loan equal to the lesser of (a) $10 million or (b) 250% of its average total monthly payroll costs over a trailing 12-month period, as measured from the loan origination date. Loan amounts will be forgiven as tax free cancellation of indebtedness as long as (i) the loan proceeds are used to cover payroll costs, mortgage interest costs, rent expenses, and utility costs over an eight (8) week period beginning as of the origination date, and (ii) employee and compensation levels are maintained.
Per Treasury, the underwriting standards for eligibility are relaxed, and private lenders making PPP loans will be required to verify that the applicant business was in operation as of February 15, 2020, and that it had employees for whom it paid salaries and payroll taxes.
The application window opens on Friday, April 3, 2020 for small businesses and sole proprietorships and Friday, April 10, 2020 for independent contractors and self-employed individuals. Applications can be made through any SBA-certified private lender.
Additional resources are available on the Treasury’s website.
Morse is following this topic closely. Please feel free to reach out to your Morse contact, or to speak with Joe Hunt, Amanda Thibodeau, or Matt Mitchell directly, should you have any questions.
Read our latest COVID-19 Alert.
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.
DOL Issues Revised Emergency Paid Sick Leave Guidance; Limits Scope Of Small Business Exemption
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
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
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.
Massachusetts Employment Law Blog 