Paid sick and family leave is expanding. The ongoing COVID-19 pandemic, and the special pressures it has placed on parents and families, has renewed the push for mandated paid sick and family leave. Congress’ decision not to expand the Families First Coronavirus Response Act (FFCRA) in the latest relief package, has spurred state and local governments to renew their efforts to provide COVID-19 paid sick leave and, in some cases, permanent paid sick leave.

Also, is it safe to assume the federal government is not planning to pass a paid sick leave mandate? After all, the Federal Employee Paid Leave Act, which passed in 2019, was just expanded in October 2020. The answer is no, because all signs indicate that a paid federal leave mandate for private employers will be on the horizon during the Biden administration. But until that time comes, employers with a national or multi-state presence will need to comply with a hodgepodge of state and local laws. Continue Reading Paid Sick Leave Trends: States and Localities Step In Where Federal Law Falls Short

The American Rescue Plan Act (ARPA), signed into law on March 11, 2021, requires employers to provide free COBRA coverage to employees (and family members) who qualify for COBRA due to an involuntary termination of employment or reduction in hours.  Employers are required to offer free COBRA coverage between April 1 and September 30, 2021 (the “Subsidy Period”).  This Advisory discusses employer obligations related to the subsidy – including new COBRA election periods and new COBRA notices – and how employers will be reimbursed for this 100% subsidized COBRA coverage through a payroll tax credit. Continue Reading COBRA Subsidies Under the American Rescue Plan Act

For years, employee interest in unions has dwindled. But a pandemic, persistent income inequality and high unemployment—not to mention the most pro-union Presidential administration in generations—have all converged to flip that script.

5,800 workers at an Amazon warehouse in Bessemer, Alabama are currently voting whether to join a union in an election that runs through March 29th. The current unionization efforts have captured national attention and drawn support from both sides of the aisle, including Republican Senator Marco Rubio. A win in the election would be a major victory for the labor movement. Amazon is the second-largest private employer in the United States, and it has avoided unionization at all of its U.S. facilities up to this point. Is this recent unionization effort a reflection of a larger change brewing in the labor world?

Continue Reading Are Unions Primed for a Comeback?

As we have previously noted on this blog, a central aim of the Trump administration was to take aim at—and rescind—Obama-era labor rules. The Trump Department of Labor (DOL) took what was perceived as a consistently pro-business stance, reversing worker-friendly Obama-era rules and issuing new rules favorable to employers. With the proverbial pendulum now swinging back towards worker protections under the Biden administration, two rules with a significant impact on employers are likely to change: independent contractor/employee classifications, and the “joint employer” doctrine. Continue Reading The DOL Announces Plans to Rescind Two Final—and High-Impact—Rules

Forget speculation about what is to come: the Biden administration has already acted to unravel the Trump legacy in employment and labor regulation—and to expand worker protections.

Join us on April 15, 2020 at 12:30 p.m. ET for a complimentary webinar, where we will take a deep dive into the regulatory changes immediately impacting your business.

Thursday, April 15th at 12:30pm ET

This Is Happening: Immediate Employment Law Impacts under the Biden Administration

This webinar will address immediate, real-time impacts of new employment regulation on your business now, including:

  • Significant changes to overtime classifications and wage & hour regulation
  • Expansion and extension of COVID-19 laws and regulations
  • Independent contractor classification rules
  • Easier union organizing, and a more pro-union National Labor Relations Board
  • Increased OSHA enforcement
  • And others . . .

Click here to register

On Friday March 12, 2021, Governor Cuomo signed into law legislation which requires that beginning March 12, 2021, all New York employers must provide up to four hours of paid leave per COVID-19 vaccine injection. Below are the salient features of the new law:

Who is covered?

All employees irrespective of employer size or industry.

What amount of leave are employees entitled to?

Up to four hours off per vaccine injection, paid at the employee’s “regular rate of pay.”

The law does not specifically address how much time an employee is entitled to if the vaccine requires two injections, but the law is drafted as permitting leave “per vaccine injection,” thus employees who receive a two shot vaccination could be entitled up to eight hours of paid leave.

When does the law expire? Continue Reading NY Employees Granted Up to Four Hours of Excused Leave Per Vaccine Injection

On January 12, 2021, the Department of Labor (DOL) issued long-awaited guidance for retirement plan fiduciaries that is relevant to any employer who sponsors a retirement plan that is subject to the fiduciary requirements of ERISA, including 401(k), 403(b), profit sharing, and defined benefit pension plans.  Of particular import, the guidance addresses best practices for locating and distributing retirement plan benefits to missing or non-responsive participants. The DOL also includes other helpful guidance, as discussed in more detail below.
Continue Reading DOL Issues Guidance on Missing Participants for Retirement Plans

The EEOC recently released its Enforcement and Litigation Data for Fiscal Year 2020, which ran from September 2019 to September 30, 2020—6 months before (September 2019 – March 2020) and 6 months during the COVID-19 pandemic (March 2020 – September 2020)—and several interesting trends emerged. Looking back, it is hard to say if the trends we see now would remain the same if everything hadn’t come to a complete halt exactly one year ago. Regardless, the EEOC started a new fiscal year on October 2020, and with the pandemic still raging on we can look to last year’s litigation data to provide hints about what we might expect as we go forward. Continue Reading Litigation Data: 6 Months With and 6 Without COVID-19

As described in our client advisories of May 6, 2020 and February 11, 2021, 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 (each, a “Qualifying Event”).

Under this relief, plan administrators were directed to disregard the period from March 1, 2020 until 60 days after the end of the federally declared national emergency for COVID-19 (the “Outbreak Period”) in determining such deadlines.  Because the statutes authorizing this relief impose a one-year limit on the period that may be disregarded in determining these deadlines, as described in our client advisory of February 11, 2021, the Outbreak Period was generally expected to end on February 28, 2021, absent further action from the DOL.

In a last-minute change of course, the DOL is now requiring the relief period instead to be the one-year period beginning on the normally applicable deadline, or 60 days after the end of the federally declared national emergency for COVID-19, if sooner.  As of this writing, the federally declared national emergency is still in place and the government has given no sign of when that declaration might end.  In other words, the relief period is to be measured on an event-by-event basis with respect to each participant and beneficiary instead of an overall deadline that applies to the plan as a whole.

This means that a participant who became eligible for COBRA on January 30, 2021, and who normally would have had until March 31, 2021 to elect COBRA, will have until March 31, 2022 to do so (assuming the national emergency does not end before January 30, 2022).  More significantly, a participant who experiences a Qualifying Event on or after March 1, 2021 (i.e., more than a year after the start of the Outbreak Period) will also be eligible for the relief.

In apparent recognition of its strained interpretation of its own original guidance regarding extension of certain plan deadlines, the DOL observed that plan disclosures issued during the pandemic may need to be reissued or amended if such disclosures did not accurately inform participants and beneficiaries of when actions are required.

Finally, the DOL observed that plan fiduciaries should make reasonable accommodations to prevent the loss or undue delay in payment of benefits and minimize the possibility of individuals losing benefits because of a failure to comply with pre-established time frames.  Specific examples of accommodations in the DOL guidance include affirmatively sending the affected participant or beneficiary a notice regarding the end of the relief period and, in the case of a group health plan, informing the affected participant or beneficiary of other coverage options, including through the Health Insurance Marketplace in the participant’s state.  It is unclear from this guidance whether the DOL expects plan fiduciaries to make other types of accommodations, such as extending deadlines beyond the statutory limits as facts and circumstances may warrant.

Based on the DOL’s latest guidance, plan administrators should be prepared to continue contending with the uncertainty and administrative difficulties created by the Outbreak Period relief until the President declares an end to the national emergency for COVID-19.

If you have any questions about the DOL’s latest interpretation of the Outbreak Period relief, or if you would like assistance in reviewing, preparing or revising communications to plan participants about the relief, please contact a member of our Employee Benefits Group.

Continue Reading DOL Issues New Guidance on the Duration of its COVID-19 Outbreak Period Relief

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