Although the U.S. is still in the thick of the COVID-19 crisis, this is exactly when employers who are deemed “non-essential” should be developing a careful, considered plan to bring their workforces back. Employers face a multitude of challenges in the planning process, including: (1) determining when and who comes back; (2) parting ways with employees with whom the business can no longer support or need; (3) sidestepping lawsuits that could otherwise arise after employee terminations; and (4) balancing employees’ legitimate concerns for themselves and their families’ with an increasingly imperative need to get your business up and running again.

This post briefly addresses issues employers should consider when bringing employees back. For a deeper dive of the issues covered in this post and more, check out a recording of Kelley Drye’s Part 1: Getting Back To Work: Preparations and Considerations for Employers webinar, and register for Part 2: Getting Back To Work: When the Rubber Hits the Road. Part 2 is scheduled for April 30, 2020 at 12:30 PM ET, click here to register.

Continue Reading COVID-19 and Returning to Work: For Employers, It’s Not Too Soon to Plan a Comeback

Last week, the FDA approved the use of telethermographic systems (essentially, heat-sensitive cameras) to detect human temperature during the COVID-19 public health emergency. The cameras can measure individuals’ temperatures in comparison to their surroundings to help identify fevers.

Companies considering using these devices should review the article, Finding Fevers: FDA Relaxes Rules On Temperature-Detecting Cameras, written by Kelley Drye partner, Kristi Wolff and consider the associated employment and privacy issues.   

Continue Reading Finding Fevers: Considerations Before Using Temperature-Detecting Cameras

In response to the COVID-19 emergency, the IRS has automatically extended the deadline for retirement and welfare plans to file Form 5500 and Form 8955-SSA until July 15, 2020.  As explained below, however, this automatic extension will only be useful to certain benefit plans with a non-calendar plan year.

Both Form 5500 and Form 8955-SSA must be filed by the last day of the 7th month following the end of a plan year.  A plan may extend this original filing deadline by applying for a 2 1/2 month extension using Form 5558.  The IRS has, however, granted an automatic extension until July 15, 2020 for plans with original or extended filing deadlines that fall on or after April 1, 2020 through July 14, 2020.

Continue Reading Limited Filing Relief for Form 5500 and Form 8955-SSA

Last week, the US Supreme Court made it easier for a federal worker to establish a claim for age bias.

This decision does not impact private employers, because it relied on the specific language of the federal sector section of the Age Discrimination in Employment Act (ADEA). But could this signal a possible future loosening of the burden of proof for other plaintiffs? We will have to wait and see.

SCOTUS held that federal employees can establish age discrimination under the federal sector section of the ADEA, merely by proving that age bias “taints the employer’s decision-making process.” Babb v. Wilkie, Secretary of Veteran Affairs, No. 18-882. This is weaker than the “but-for” standard of causation applicable to age discrimination claims under Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009). In other words, the fact that the same employment decision would have been reached had age not been taken into account is not relevant for purposes of deciding a federal government employee’s age discrimination claim.

Continue Reading It is Now Easier For Federal Workers to Prove Age Bias

Amidst the COVID-19 melee, the New York legislature passed its Budget for Fiscal Year 2021, which included a mandatory paid sick leave bill, signed by Governor Cuomo on April 3, 2020.

For better or worse, this enactment will usher in “the strongest Paid Sick Leave in the nation.”

The Paid Sick Leave law will take effect 180 days after its signing, on September 30, 2020, although employees may not begin to use accrued sick leave until January 1, 2021. New York employers should begin to think ahead about how the Paid Sick Leave law, summarized below, will impact their current leave policies.

Continue Reading New York Enacts Mandatory Sick Leave Law

The coronavirus pandemic has forced employers and health care providers to make difficult decisions about how to protect their customers, employees and patients, while at the same time protecting their personal information. Even during a national health emergency, however, covered entities (e.g., health plans and providers) must continue to comply with the privacy and security rules of the Health Insurance Portability and Accountability Act (“HIPAA”).

In recognition of the unique challenges being faced by covered entities in meeting their HIPAA obligations, the Department of Health and Human Services (“HHS”) has issued various forms of HIPAA-related guidance and enforcement relief, which we have summarized below.

Continue Reading HHS Issues HIPAA Enforcement Relief and Guidance

The U.S. Department of Labor has just issued over one hundred pages of detailed temporary regulations, effective from April 1, 2020 to December 31, 2020, implementing the Families First Coronavirus Response Act (“FFCRA”). The regulations provide much-needed clarity on a range of issues that many employers have struggled with over the past week.

Below is a summary of key points:

Continue Reading DOL Released 100+ Pages of Detailed Temporary Regulations

On March 27, 2020, the President signed into law the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”), the third phase of emergency relief passed by Congress in response to the coronavirus pandemic. The CARES Act includes relief measures for workers and employers that impact employee benefit and compensation arrangements, and which may require employers to take certain administrative actions. Below is an overview of the CARES Act provisions affecting various types of employee benefit and compensation arrangements.

Note that this Advisory does not address the CARES Act provisions specific to air carriers and charitable employers.

Continue Reading CARES Act Impact on Employee Benefits and Compensation

On March 27, 2020, the President signed the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) into law.  The CARES Act’s purpose is aimed at reducing the economic impact of the COVID-19 pandemic and stimulating the economy with a $2.1 trillion dollar infusion.

Among other things, the CARES Act amends Section 7(a) of the Small Business Act creating the “Paycheck Protection Program (the “Program”). The Program broadens relief to a segment of small businesses other than those that would otherwise be ineligible to receive SBA 7(a) loans.  The Program will apply retroactively from February 15, 2020 until June 30, 2020. Below are some highlights:

Continue Reading CARES ACT HIGHLIGHTS: Paycheck Protection Program and FFCRA Amendments

On April 1, 2020, the Department of Labor (“DOL”) posted a temporary rule issuing regulations for implementing the Families First Coronavirus Response Act (“FFCRA”), which became effective the same day. We reported on the DOL’s other recent efforts to flesh out the new law through its FAQ section, which included some much needed guidance on what has been dubbed the “small business exemption.”

In keeping with that guidance, the DOL’s temporary rule confirms our understanding of the eligibility requirements under the exemption. Employers with fewer than 50 employees may be exempted from providing leave to employees requesting leave due to a COVID-19 related school closure or unavailable caregiver if an authorized officer of the company determines that providing leave would “jeopardize the viability of the small business.” A more detailed analysis of these eligibility requirements can be found in our previous post.

However, the temporary rule also places renewed emphasis on the importance of documenting. For every instance that an authorized officer determines leave should be denied based on the criteria set forth in the exemption, the business must document “the facts and circumstances that meet the criteria  . . .  to justify such denial” and must retain such documentation for four years.

Further, regardless of whether a small business chooses to exempt one or more of its employees through the exemption, businesses are still subject to the FFCRA’s notice posting requirements.