Archive
Biden Administration Announces Public Vaccine Mandates That Require Action by Large Private Employers, Federal Contractors, and Healthcare Employers
By: Matthew Mitchell & Amanda Thibodeau
On September 9, 2021, the Biden Administration announced the Path Out of the Pandemic – a strategic plan to respond to the continued spread of COVID-19 (the “Plan”). In general, the Plan outlines a broad-brush approach to combating the continued ill-effects of the pandemic, including:
- Strategies to increase vaccination rates;
- Strategies to maintain school operations;
- Strategies to implement additional safety regulations; and
- Strategies to implement additional economic stimulus programs.
The widely reported-on, cornerstone of the Plan is a mandate that, when implemented, will require large employers, federal contractors, and healthcare employers to adopt mandatory vaccination policies for their employees (the “Vaccine Mandate”).
The basic elements of the Vaccine Mandate can be found in our COVID-19 Alert.
COVID-19 Alert: OSHA Issues Emergency Temporary Standard for Healthcare Settings
By: Matthew Mitchell & Amanda Thibodeau
On June 10, 2021, the Occupational Safety and Health Administration (“OSHA”) issued an Emergency Temporary Standard (“ETS”) directed at protecting frontline healthcare workers for the duration of the COVID-19 pandemic. As part of the Biden Administration’s directives, OSHA determined that its current standards and regulations, and OSHA’s General Duty Clause, were inadequate to protect workers in the healthcare sector, and issued this ETS. OSHA additionally updated its non-binding guidance for all other industries, which still remain subject only to OSHA’s regular regulations, standards, and General Duty Clause.
THE “NEW” REQUIREMENTS
The main section of the ETS requires employers to develop and implement effective COVID-19 plans, the control strategies of which should be very familiar to most employers at this point in the pandemic. However, now OSHA will require employers to use a number of familiar controls in a layered approach in order to protect employees. The key requirements of the ETS are:
- COVID-19 Plan. OSHA will now require every qualifying employer to develop and implement a COVID-19 plan for each workplace site. If the employer has more than 10 employees, the plan must be in writing. The Plan must be developed in conjunction with management and non-management and must be clearly communicated to employees.
- Patient screening and management. Employers must limit points of entry in direct care patient settings, screen and triage all visitors, clients, patients, and others entering the setting, and encourage telehealth services when appropriate.
- Standard and transmission-based precautions. Employers must develop and implement policies and procedures to adhere to Standard and Transmission-Based precautions based on CDC guidelines.
- PPE. Employers must provide facemasks to be worn by each employee when indoors or when sharing a vehicle for work purposes, with some exceptions.
- Aerosol-generating procedures on a person with suspected or confirmed COVID-19. Employers must limit employees present for the procedure to only those essential, and perform procedures in an airborne infection isolation room, if available; and clean and disinfect surfaces and equipment after the procedure is completed.
- Physical distancing. Employers must keep people at least 6 feet apart when indoors, unless not feasible (such as for hands-on medical care).
- Physical barriers. Employers must install cleanable or disposable barriers installed at fixed work locations in non-patient areas where social distancing is not possible.
- Cleaning and disinfection. Employers must engage in standard practices for cleaning and disinfection for patient care areas, resident rooms, and medical devices and equipment, and in all other high-touch areas, in accordance with CDC guidelines.
- Ventilation. Employers must ensure that all HVAC systems are used in accordance with the manufacturer’s instructions, and that all air filters are rated Minimum Efficiency Reporting Value (MERV) 13 or higher, or the highest compatible with the system.
- Health screening and medical management. Employers must screen each employee daily, which may be done through self-monitoring by the employee. Each employee must report COVID-19 confirmed and suspected illness, or symptoms to the employer. The Employer must also notify all employees who were not wearing respirators and/or required PPE of any COVID-19 exposure at the workplace.
- Vaccination. Employers must provide support and paid leave for employees to receive a COVID-19 vaccination, and to recover from any side effects.
- Training. Employers must train and educate employees on COVID-19 transmittal, hygiene, and other prevention policies and procedures.
- Anti-retaliation. Employers must inform employees of their rights to the protections required by the ETS, and employers must not discharge or discriminate against employees for exercising their rights under the ETS or for engaging in actions required by the ETS.
- Recordkeeping. Employers with more than 10 employees must establish a COVID-19 log of all employee COVID-19 infections and follow requirements for making records available to employees and union representatives.
- Reporting requirements. Employers must comply with OSHA’s reporting requirements for work-related COVID-19 fatalities and in-patient hospitalizations.
Will these changes under OSHA’s new ETS affect your business? Learn more in our COVID-19 Alert.
DOL Updates FAQs on FFCRA Leave as a New School Year Approaches
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
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.
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.
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.
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.
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.
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.
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.
Round Up of Noncompete Reform Coming to New England
Noncompete 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
By: Amanda Thibodeau
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
By: Amanda Thibodeau
Tommorowland Today: The Illinois Legislature Responds to the Rise of A.I. in the Employment Sphere
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
By: Amanda Thibodeau
DOL Issues New Opinion Letter On the Intersection of IEP Meetings and the FMLA
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
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.
U.S. Supreme Court Rules EEOC Charge is Procedural Requirement, Not Jurisdictional
By: Amanda Thibodeau
As we have discussed previously, Title VII of the Civil Rights Act of 1964 (“Title VII”), is a federal statute that prohibits discrimination in employment on the basis of race, color, religion, sex, or national origin. It also prohibits retaliation against individuals who assert rights under the statute. To assert a claim under Title VII, the statute outlines that as a precondition to filing suit in federal court, a person must file a formal charge with the Equal Employment Opportunity Commission (EEOC) within 180 or 300 days of the alleged violation. But what happens if an individual fails to file such a charge, or fails to list every alleged violation in that charge?
On June 3, 2019, the U.S. Supreme Court answered that question with its ruling in Fort Bend Cty. v. Davis. In Davis, the plaintiff filed an initial charge with the EEOC alleging retaliation for reporting sexual harassment to her employer. While the EEOC case was pending, Ms. Davis contends she was fired for refusing to work on Sundays based upon her religious commitments. Ms. Davis attempted to add to the initial EEOC charge by handwriting “religion” on an EEOC intake questionnaire, but her EEOC charge was never formally amended. She then went on to file her case in federal court, alleging discrimination based upon religion and retaliation.
Several years into the litigation, Fort Bend filed a motion to dismiss based upon Ms. Davis’ failure to file an EEOC charge alleging religious discrimination. Fort Bend alleged the federal court did not have jurisdiction over the claim because Ms. Davis failed to meet Title VII’s charge requirement. The district court granted that motion. The U.S. Court of Appeals for the Fifth Circuit reversed, holding that Fort Bend waived the issue by waiting too long to raise it with the court.
The U.S. Supreme Court then weighed in this week affirming the Fifth Circuit’s opinion, holding that Title VII’s charge requirement is procedural rather than jurisdictional. The Court said Title VII’s charge requirement “is a processing rule, albeit a mandatory one, not a jurisdictional prescription delineating the adjudicatory authority of courts.” In short, while Title VII requires an individual to file a charge with the EEOC, the filing itself is not necessarily the act that triggers jurisdiction over the claim, and thus failing to file the charge is not necessarily fatal.
The Court’s ruling does not mean that plaintiffs are free to ignore such claim-processing requirements, however. The Court was clear that the failure to follow such requirements may still be fatal to plaintiffs’ claims; however, defendants must be careful to raise the issue early on – preferably in the answer or an early motion to dismiss. Otherwise, the procedural defects are deemed waived.
For more information on Title VII or other discrimination issues, please contact Matthew Mitchell or Amanda Thibodeau.
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.
Title VII at SCOTUS
By: Amanda Thibodeau
In April 2019 the U.S. Supreme Court announced it would hear three cases related to discrimination based upon sexual orientation and gender identity during its next term. The Court will analyze the scope of Title VII of the Civil Rights Act of 1964 (“Title VII”), which prohibits discrimination on the basis of a protected class. Currently, the lower courts are split on whether the term “sex” in the statute includes sexual orientation and/or gender identity. Both the Second and Seventh Circuit Courts as well as the Equal Employment Opportunity Commission (EEOC) all interpret Title VII as covering sexual orientation, while the Eleventh Circuit disagrees.
In two of the cases, Altitude Express v. Zarda and Bostock v. Clayton County, Georgia, the Court will consider whether Title VII’s prohibition on sex discrimination protects individuals from discrimination on the basis of sexual orientation. In R.G. & G.R. Harris Funeral Homes v. EEOC, on the other hand, the Court will consider whether discrimination on the basis of gender identity is prohibited under Title VII.
The Zarda case involves a skydiving instructor who was fired after he disclosed to a customer that he was gay. Mr. Zarda subsequently died in a 2014 skydiving accident, and his estate has been pursuing the case on his behalf. The U.S. Court of Appeals for the Second Circuit interpreted Title VII to include sexual orientation under its protections. Mr. Zarda’s former employer then appealed that decision to the U.S. Supreme Court. Noteworthy is that the EEOC and the Department of Justice (DOJ) both submitted briefs in the Second Circuit which were inapposite of each other: the EEOC arguing that Title VII protects discrimination based upon sexual orientation, while the DOJ argued it does not.
In the Bostock case, a child welfare services coordinator claimed he was fired for being gay. The Eleventh Circuit ruled against him, citing a 1979 5th Circuit case that held homosexuality is not prohibited by Title VII.
The third case, Harris, involves a transgender woman, Aimee Stephens, who was fired after informing her employer, a funeral home, that she was a transgender woman and would start wearing women’s clothing to work. Her former employer defended itself in the case by claiming that it believed gender transition violated “God’s commands.” The federal district court initially ruled that Ms. Stephens was discriminated against, but that the employer was protected by the Religious Freedom Restoration Act. The Sixth Circuit then reversed the district court, holding that not only is transgender discrimination prohibited under Title VII, but also that the employer was not protected by the Religious Freedom Restoration Act. The funeral home appealed.
Some states, like Massachusetts, already provide their own individual protections based upon sexual orientation and/or gender identity, but many states do not. The Supreme Court’s determinations in these cases, therefore, have the potential to change the landscape of employment discrimination law nationwide, and will be closely watched. Advocacy groups, such as the American Civil Liberties Union (who is co-counsel in two out of three cases), are particularly concerned about the potential impact of the Court’s decisions. Decisions in these cases are expected by June 2020.
Morse will watch these cases closely and will provide updates as new information becomes available.
For more information on Title VII or other discrimination issues, please contact Matthew Mitchell or Amanda Thibodeau.
Massachusetts Employment Law Blog 