Archive

Posts Tagged ‘covid-19’

Employment Law Round-Up: What Massachusetts Employers Need to Know For Q4 2020

October 15, 2020 Leave a comment

By Matthew L. Mitchell and Amanda Thibodeau

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

With a work environment pressurized by the COVID-19 crisis and a contentious election cycle, employers are finding themselves increasingly involved with unusual employee conflicts and complicated employment law compliance questions. This can be particularly disruptive during the closing months of the business year.

The following summary discusses a variety of key concepts and new employment law standards that are intended to support Massachusetts employers in avoiding and navigating issues that may arise in the closing months of 2020. Topics include: Politics in the workplace, employee social media activity, responding to worksite infections, workplace safety, Massachusetts Paid Family Medical Leave, and unemployment insurance fraud. 

Employment law attorneys Matt Mitchell and Amanda Thibodeau summarize these standards here.

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

August 28, 2020 Leave a comment

By: Amanda E. Thibodeau

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

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

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

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

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

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

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

July 29, 2020 Leave a comment

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

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

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

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

Learn more in our COVID-19 Alert.

OSHA Publishes Guidance on Returning to Work

June 26, 2020 Leave a comment

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

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

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

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

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

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

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

For more information, please contact Amanda Thibodeau.

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

June 26, 2020 Leave a comment

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

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

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

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

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

OSHA Publishes FAQs on Face Coverings in the Workplace

June 17, 2020 Leave a comment

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

The Occupational Safety and Health Administration (OSHA) recently published additional recommendations in the form of FAQs related to the use of face masks in the workplace. The new guidance covers the differences between PPE, cloth face masks, and surgical masks, and what the current OSHA regulations require of employers. OSHA clarifies that the new FAQs do not place new regulatory burdens on employers, but are instead provided to assist employers in providing a safe workplace under current regulations.

The Occupational Safety and Health Act’s General Duty Clause, Section 5(a)(1), requires employers to provide their employees with “a workplace free from recognized hazards likely to cause death or serious physical harm.” This generally requires employers to adopt strategies and other control measures to protect their workers from known hazards. While cloth face coverings are encouraged by the Centers for Disease Control (CDC), current OSHA regulations do not require cloth face coverings. However, OSHA does have regulations and standards on when PPE is required or recommended. It also notes that cloth face coverings or even surgical face masks are not a substitute for PPE, such as N95 masks, under OSHA’s PPE standards.

OSHA’s FAQs detail the differences between cloth face coverings, surgical masks, and respirators, and the merits and protections of each. OSHA recommends that even though cloth face coverings are not required under its regulations, employers may choose to adopt such a policy as a control measure, and OSHA does encourage their use. OSHA notes, however, that whether an employer chooses to require or encourage masks will be highly dependent on the specific circumstances of each worker, workspace, and work requirements. In some instances, the wearing of a face covering may increase other hazards, and employers should be cognizant of evaluating such risks when forming any policies on face coverings. OSHA also emphasized that face coverings are not a substitute for social distancing measures, and employers must still adopt such strategies with or without face coverings.

OSHA additionally made clear that for industries or situations where respirators and other PPE are required by the presence of applicable workplace hazards, the regulations require that employers attempt other mitigation and control strategies before requiring respirators – but when respirators cannot be obtained due to supply issues (or other unavailability), employers cannot substitute cloth or surgical masks. For example, where asbestos is present and creates an imminent danger to the worker, the employer must attempt other control issues (engineering, administrative, and work practice controls) first. If the control measures do not eliminate the hazard and respirators are not available, the employer must delay the task, if feasible, to avoid exposing the worker to the hazardous condition.

For more information, please contact Amanda Thibodeau.

EEOC Updates COVID-19-Related Employer Guidance

June 15, 2020 Leave a comment

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

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

EEOC Announces Delay in EEO Data Collections

May 11, 2020 Leave a comment

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

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

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

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

Categories: COVID-19 Alert Tags: , ,

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

May 11, 2020 Leave a comment

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

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

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

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

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

CDC Recommends New Workplace Sanitation Standards

May 5, 2020 Leave a comment

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

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

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

Of particular note, the Guidance instructs employers to:

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

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

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

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

April 29, 2020 Leave a comment

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

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

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

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

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

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

April 27, 2020 Leave a comment

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

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

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

Unemployment Options Under the Massachusetts Emergency Regulations

April 27, 2020 Leave a comment

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

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

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

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

April 6, 2020 Leave a comment

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

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

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

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

DOL Releases New Guidance for Compliance with CARES Act and FFCRA

April 3, 2020 Leave a comment

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

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

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

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

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

DOL Posts Temporary Rule Issuing Regulations on Families First Coronavirus Response Act

April 2, 2020 Leave a comment

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

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”)

April 1, 2020 Leave a comment

JEH Headshot Photo (M1160809xB1386)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 HuntAmanda 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

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.