As described in our client advisory of May 6, 2020, the Department of Labor (the “DOL”) temporarily suspended the deadlines for employee benefit plan participants to exercise HIPAA special enrollment rights, elect and pay premiums for COBRA continuation coverage, file claims for benefits and appeal benefit claim denials.  This relief began on March 1, 2020 and, unless further extended by the DOL, will end on February 28, 2021 (the “Outbreak Period”).

If the Outbreak Period is not extended, then, effective March 1, 2021, the clock will begin ticking on deadlines that were suspended during the Outbreak Period.  For example, if a participant became eligible for COBRA continuation coverage on February 1, 2020, the 60-day period for electing such coverage, which in any other year would have ended on March 31, 2020, will now end on March 31, 2021 (i.e., the last day of the 60-day period which began on February 1, 2020 and includes (i) 29 days before the start of the Outbreak Period and (ii) 31 days after the end of the Outbreak Period). Continue Reading DOL Outbreak Period Relief for Employee Benefit Plan Participants Scheduled to End Soon

Tuesday, March 2nd at 12:30pm ET

Employee Leave Laws: Managing the Intersection of FMLA, ADA, and COVID Leave

Many issues can arise when coordinating employee leaves of absence, especially when employee requests are related to medications (opioids or medical marijuana), mental health impairments, remote work, and the pandemic. We are talking about the nuanced problems and gray areas that makes complying with the ADA, FMLA and numerous new COVID-19 leave laws nearly impossible.

Join the Kelley Drye Labor and Employment team for a complimentary webinar where we take you through a practical and effective thought process to mitigate (not remove) risk from the more challenging employee leave situations. Our goal is to equip you with the right tools to coordinate employee leave with confidence.

Click here to RSVP

While many states have legalized medical and recreational marijuana, marijuana remains an illegal controlled substance under federal law. As we have previously discussed, this has created a conundrum of sorts for employers who want to maintain a drug free workplace. In New York State, the landscape for employers has just gotten more challenging.

Medical marijuana has been legalized in the state since 2014. Governor Cuomo has since announced legalized recreational use may soon follow. Additionally, in New York City, employers are prohibited, with certain exceptions, from testing job applicants for marijuana. Employers can, however, test current employees.

Despite these legislative initiatives, a question still remains: What happens if an employee tests positive at work, but has a prescription for medical marijuana? A recent New York appellate court decision warns employers should proceed with caution.

Continue Reading The Cannabis Conundrum: A Warning For Employers

On January 20, 2021, the New York State Department of Labor issued new guidance on the state’s COVID-19 sick leave law, which clarifies employees’ leave entitlements and expands employers’ obligations under the law.

As a reminder, New York’s COVID-19 sick leave law provides paid and unpaid sick leave, with access to expanded paid family leave and temporary disability, for employees ordered to quarantine or isolate as a result of COVID-19. The amount of leave and entitlements depends on the size of the employer and its net income. We provided an overview of the law and its requirements here. Continue Reading NY Expands COVID-19 Paid Leave

On December 27, 2020, the President signed into law the Consolidated Appropriations Act, 2021 (the “Act”), the latest major piece of legislation passed by Congress in response to the coronavirus pandemic. This advisory describes certain provisions of the Act affecting retirement plans and other employee benefits.  In a separate advisory, we described the Act’s impact on health and welfare plans, including health and dependent care flexible spending arrangements.

Relief from Partial Terminations for Retirement Plans

When a retirement plan experiences a partial termination, affected participants must become fully vested in their accrued benefits. Ordinarily, the Internal Revenue Service uses a rebuttable presumption that a partial termination occurs in a plan year in which there is a 20% or greater reduction in the number of participants. Under the Act, a plan will not be treated as having a partial termination during any plan year which includes the period beginning on March 13, 2020, and ending on March 31, 2021, if the number of active participants covered by the plan on March 31, 2021 is at least 80% of the number of active participants covered by the plan on March 13, 2020.

Special Disaster Relief for Retirement Plans

Continue Reading New Stimulus Legislation Affects Retirement Plans and Other Employee Benefits

In 2020, California enacted several new laws affecting employers and their employment policies and procedures. While some of these laws are already in effect, others go into effect over the course of the next few months and years.

Laws That Took Effect in 2020

Workers’ Compensation COVID-19 Liability

By signing SB 1159 into law on September 17, 2020, California Governor Newsom codified his earlier issued executive order, which states that under certain circumstances, when an employee tests positive for COVID-19, there is a rebuttable presumption that the employee contracted the virus while at work and, therefore, said illness is covered by the employers’ workers’ compensation insurance coverage. Continue Reading 2021 Employment Law Spotlight: California

Last year, several major employment laws were enacted in the State of Illinois, and specifically in the City of Chicago. Employers in Illinois and/or Chicago should be reminded of these laws for 2021. Here are just a few of the highlights:

  • The Illinois Human Rights Act (“IHRA”) was amended to cover “single-employee” employers and to require employers to report to the Illinois Department of Human Rights (“IDHR”) all adverse judgements and rulings relating to harassment and discrimination;
  • Employees covered by the Chicago Fair Workweek Ordinance now have a private right of action against employers for violations of the law;
  • Chicago Enacts COVID-19 Anti-Retaliation Measures; and
  • Class action lawsuits under the Illinois Biometric Information Privacy Act (“BIPA”) are expected to continue to rise in 2021.

Continue Reading 2021 Employment Law Spotlight: Chicago and Illinois

The impact of the legal definition of “employee” versus “independent contractor” under the Fair Labor Standard Act (“FLSA”) and other employment laws cannot be understated. The FLSA’s minimum wage and overtime requirements—along with a vast array of other legal obligations employers owe to employees—simply do not apply to independent contractors. Unhelpfully, various regulatory agencies and courts have looked in the past to similar, but not quite identical, tests of independent contractor status. With so much riding on the right classification both in terms of lawsuits and dollars, any clarification of which test an employer should look to is absolutely critical guidance to U.S. businesses.

Enter the Department of Labor (“DOL”) and its January 7, 2021 publication of the final rule on classifying “Independent Contractor Status under the Fair Labor Standards Act” (the “Final Rule”), which goes into effect on March 8, 2021.  Continue Reading Independent Contractor Final Rule (For Now)

On December 27, 2020, the President signed into law the Consolidated Appropriations Act, 2021 (the “Act”), the latest major piece of legislation passedby Congress in response to the coronavirus pandemic. This advisory describes certain provisions of the Act affecting health and welfare plans, including health and dependent care flexible spending arrangements (“FSAs”).  In a separate advisory, we will describe the Act’s impact on retirement plans and other employee benefits. Continue Reading New Stimulus Legislation Affects Health and Welfare Plans, including Flexible Spending Arrangements

President-elect Joseph R. Biden Jr. and Vice President-elect Kamala Harris will be sworn in on January 20, 2021, signaling the official change in administration. Employers can certainly expect to see a shift in the direction of federal labor and employment laws. Already, Biden’s recent appointment of Marty Walsh, a union official, to Secretary of Labor, signifies a new era in NLRB activity and pro-employee and pro-union labor laws.  Further, the DOL and EEOC are bound to be more aggressive in undertaking many initiatives overlooked by the Trump Administration.

Federal labor and employment laws aside, New York employers should be reminded of new state laws for 2021.  Here are just a few of the highlights. Continue Reading 2021 Employment Law Spotlight: New York