New Guidance from DOL Regarding the Suspension of Certain Employee Benefit Plan Deadlines Due to COVID-19

Posted in Employee Benefits, Employment Counseling & Workplace Claims Prevention

Last minute guidance affects employers sponsoring group health plans, and answers a much-discussed question as we approach the one-year anniversary of  past COVID guidance.  Today the Department of Labor issued long-awaited guidance concerning whether certain employee benefit plan deadlines will continue to be suspended or whether the clock begins ticking again as of March 1, 2021.  As we explain, the answer is, well, kind of both.

Past Guidance

Last year, due to the COVID-19 pandemic, the Department of Labor, in conjunction with the Department of Treasury, issued guidance and a rule that extended certain timeframes otherwise applicable under ERISA and the Internal Revenue Code (Code).  The goal was to provide enhanced flexibility in an era of unknowns.  Specifically, the Departments ordered all group health plans, disability and other employee welfare benefit plans, and employee pension benefit plans subject to ERISA or the Code to “disregard” the period from March 1, 2020 until sixty (60) days after the announced end of the National Emergency due to COVID-19 or such other date announced by the Departments in a future notification (the “Outbreak Period”) for certain specified actions.

This action was taken by the Departments pursuant to their statutory authority under ERISA section 518 and Code section 7508A, which permits them to prescribe a period of up to one year that may be disregarded in determining the date by which any action is required or permitted to be completed by an employee benefit plan, plan sponsor, plan administrator, participant or beneficiary. Continue Reading

Is There A New Requirement To Pay Employees on Military Leave?

Posted in Employment Discrimination Harassment & Retaliation, Medical & Other Leaves, Wage & Hour

A few recent cases may have savvy employers rethinking their military leave policies and choosing to pay employees on short-term military leave to the same extent they voluntarily pay employees benefits for other leaves of absence, such as jury duty, bereavement, and sick leave.

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Employees Starting to Receive the COVID-19 Vaccine – Now What?

Posted in Employment Counseling & Workplace Claims Prevention, Workplace Safety & OSHA

Despite some employees receiving the COVID-19 vaccine, employers should still require workers to wear face coverings and remain physically distant to help prevent the spread of the virus, according to updated guidance by the Occupational Safety and Health Administration (OSHA) and the Centers for Disease Control and Prevention (CDC).

According to Bloomberg’s COVID-19 Vaccine Tracker, as of February 14, 2021, 53.8 million doses of the COVID-19 vaccine had been administered in the United States with more than 173 million across 77 countries. But multiple sources make clear that even after an individual receives the COVID-19 vaccine, it is important to continue the COVID-19 precautions implemented at the onset of the pandemic.

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Non-Union Employers Beware: The NLRB Pendulum is Pushed Pro-Union

Posted in Employment Counseling & Workplace Claims Prevention, Labor Relations

Employers that want to maintain non-union status must be aware of the significant and rapid shift of the NLRB toward pro-union positions. Everyone expected the NLRB pendulum to swing pro-union, but few observers expected the pendulum to be immediately and forcibly pushed as it has been. First was the prompt and unprecedented ousting of the General Counsel and Deputy General Counsel, and appointment of an extremely labor-friendly Acting General Counsel. Although the appointment of a pro-union General Counsel was expected, the speed with which the Acting General Counsel dispatched prior NLRB policy memoranda was the second surprise. The swift rescission of policy memoranda is likely just the tip of the iceberg.

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Employers Should Confirm that 2020 FFCRA Wages Were Properly Reported

Posted in Employee Benefits, Medical & Other Leaves, Wage & Hour

Employers were required to distribute and file Forms W-2 by February 1. To the extent they have not already done so, employers should confirm that any leave wages paid in 2020 pursuant to the Families First Coronavirus Response Act (FFCRA) were properly reported on Forms W-2.

The Internal Revenue Service provided guidance concerning reporting of FFCRA leave wages in Notice 2020-54.

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Biden Administration Heralds New Protections for LGBTQ Employees

Posted in Employee Handbooks & Policies, Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & Retaliation

While President Biden’s initial flurry of executive orders largely sought to address the pandemic and undo the regulatory legacy of his predecessor, one order places LGBTQ protection at the heart of the new Administration’s agenda. That order, “Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation,” states the new Administration’s general policy: “Every person should be treated with respect and dignity and should be able to live without fear, no matter who they are or whom they love.” It then orders federal agencies to review existing regulations, guidance, programs, and other agency actions, and “consider whether there are additional actions that the agency should take to ensure that it is fully implementing” the Administration’s general policy.

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Biden Quickly Shifts Immigration Policies – What Employers Need to Know

Posted in Employment Counseling & Workplace Claims Prevention, Immigration Planning & Compliance, Wage & Hour

With the inauguration of Joseph R. Biden, Jr. as the 46th President of the United States on January 20, 2021, immigration reform is on the near horizon. Employers are advised to stay abreast of fluid immigration policies that could have sweeping effects on the sponsorship of various foreign national workers.  In addition, several immigration rules promulgated in the final weeks of the Trump administration are now halted and could soon be reversed.

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Labor Department Issues New Rule for Independent Contractor Status

Posted in Employment Counseling & Workplace Claims Prevention, Labor Relations, Wage & Hour

With no clear guidance and different factors being given different weight by different courts, employers have struggled for years with whether workers can be properly classified as independent contractors, rather than employees, under the federal Fair Labor Standards Act. Now, the Department of Labor has issued a new rule  making clear what factors should be applied and how they should be weighted. The ultimate focus is on  whether a worker is economically dependent on the putative employer for work.

Whether the new rule will take effect in March as scheduled remains to be seen, as the Biden Administration has urged federal agencies to “consider” 60-day postponements new rules which have not yet become effective.

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Relief is Here Again! PPP2 Stimulus and Business Tax Benefits

Posted in Employee Benefits, Wage & Hour

The Consolidated Appropriations Act, 2021 (the “CAA”), signed into law on December 27, 2020, is the second-largest federal stimulus package of 2020, following the CARES Act. The CAA provides $900 billion in COVID relief and reserves $284 billion for small businesses through a second round of Paycheck Protection Program (“PPP”) forgivable loans, or as some are calling it, PPP2. But relief for businesses does not end at PPP loans. The CAA also provides additional tax deductions and expands the Employee Retention Credit. The SBA published its Interim Final Rules on January 6 (click here to access the IFR rules), implementing the CAA. Like PPP round 1, the SBA will be publishing applications, guidance and FAQs in the coming days, but in the meantime, this article provides an overview of PPP2 and relevant benefits of the CAA.

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What Employers Can Expect From a Biden Presidency: Part III, the Winds of Change are Upon Us

Posted in Labor Relations, Wage & Hour, Workplace Safety & OSHA

With the certification of the Electoral College votes complete, Joe Biden will become President on January 20 and no doubt usher in sweeping changes. If you want to know what to expect, join us for a webinar on Tuesday, January 19 at noon Eastern. In the meantime, here’s a sneak preview:

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