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New COVID-19-Related Stimulus

Congress has passed, and President Trump is expected to sign, the Consolidated Appropriations Act, 2021, a large year-end appropriations bill that includes COVID-19-related stimulus and relief provisions in several key areas, including the PPP loan program, paid leave tax credits, unemployment benefits, and the Provider Relief Fund. Click here to see our issue alert discussing key highlights from the new legislation.

EEOC Issues COVID-19 Guidance

On December 16, the EEOC released new COVID-19 vaccine guidance. As predicted, the new guidance generally allows employers to require employees to receive COVID-19 vaccines. But, as the EEOC explained, employers that require employees to receive COVID-19 vaccines must make exceptions for disabilities and sincerely held religious beliefs, in accordance with the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964.  

 Here are some highlights from the new EEOC guidance:
  • Employers may ask an employee for proof that he or she received a COVID-19 vaccine. But more probing follow-up questions to an unvaccinated employee “may elicit information about a disability and would be subject to the pertinent ADA standard that they be ‘job-related and consistent with business necessity.’”
  • If an employer requires all employees to receive a COVID-19 vaccine, and an employee is unable to receive one because of a disability, the employer must show that an unvaccinated employee would pose a direct threat of “significant harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”
  • The following four factors are used to determine whether a direct threat exists: “the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm.” The EEOC notes that      Continue Reading...
Judging the Sincerity of Religious Beliefs
In many situations, the question of whether an employee’s request for a religious accommodation is tied to sincere religious beliefs is not at issue. Instead, employers simply need to assess whether they can provide the accommodation without causing an undue hardship. Where an employer does question whether the employee sincerely holds those beliefs—an issue that might arise if an employee asserts a dubious religious objection to the COVID vaccine—it should look to the EEOC’s long-standing guidance on the level of inquiry it can make.
What are “religious” beliefs and practices?
According to the EEOC, religious practices include the “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” Religion typically concerns “ultimate ideas” about “life, purpose, and death.” The EEOC does not protect beliefs merely because they are strongly held. Whether a practice is religious depends on the employee’s motivation. Social, political, or economic philosophies, as well as personal preferences, are not protected as religious beliefs under Title VII.
The EEOC does grant employees the benefit of the doubt. Employers should not dismiss the beliefs simply because the employee’s practices deviate from the exact tenants of a religion, or because few or no people adhere to those religious beliefs. The EEOC cautions employers that      Continue Reading...
Baby, It's COVID Outside: How to Return to Work Safely After the Holidays

You know it’s the holiday season when the kids come home from college, the Griswolds take vacation, and Santa Claus comes to town. But for many, the most wonderful time of the year has become a cause for concern. With COVID-19 cases on the rise and family gatherings inevitable, you may be worried the virus will spread in your workplace faster than holiday cheer. Don’t have a blue Christmas—plan now to keep your workplace safe this season by revisiting your COVID-19 policies.

Review the Updated CDC Guidelines
As the medical community learns more about COVID-19, the CDC continues to update its guidance. For example, the CDC recently expanded the definition of a “close contact” to include more brief encounters. Before, “close contact” was defined as being within six feet of a confirmed positive COVID-19 case for 15 consecutive minutes or more. Now, “close contact” is defined as being within six feet of a confirmed positive case for a total of 15 minutes (see “Updated Definition of ‘Close Contact’” elsewhere in this blog).
The CDC also shortened the recommended length of quarantine time after exposure. Until recently, the CDC advised that individuals in close contact with a confirmed COVID-19 case should quarantine for 14 days. Though 14 days is still the gold-standard, the CDC now says that individuals who do not develop symptoms may end their quarantine after just 10 days, or even seven days if they test negative.
Employers should also be careful to review the latest guidelines issued by their state and local      Continue Reading...
Promises, Promises, Promises: The Perils of the Christmas Bonus

While we may all look back and laugh at Clark Griswold from National Lampoon’s Christmas Vacation and his meltdown from not receiving a Christmas bonus, that may be a very real scenario for many employees this year following the struggles the COVID-19 pandemic brought to most employers.

Although canceling employee bonuses is a great setup for a comedy, year-end bonuses can lead to legal snags that are no laughing matter for employers. Under Kansas wage payment laws and general principles of contract law, employers are legally obligated to pay bonuses when employees meet the requirements to become eligible for and earn them. Simply put, employers must own up to promises they make to employees about pay.
For example, if you tell employees at the beginning of the year that you will pay them a holiday bonus of a set amount at the end of the year, you must pay the bonus to employees whose employment continues throughout the year. However, a past practice of giving discretionary Christmas bonuses does not give rise to a legal obligation to pay bonuses of a particular amount, or at all, in subsequent years. That seems simple enough. But, employers can unwittingly create a legal obligation if they include a Christmas bonus in an itemized list of compensation and benefits in an offer letter or annual compensation statement.
Year-end bonuses based on individual, department, or company productivity goals or profits can also create legal headaches. The key is to have clear, well-written bonus policies that pass legal muster.      Continue Reading...
Foulston Ranked in 2021 "Best Law Firms"

Foulston Siefkin LLP has earned Tier 1 regional recognition in the 2021 U.S. News - Best Lawyers® "Best Law Firms" list in 39 practice areas, including: Employee Benefits (ERISA) Law; Employment Law – Management; Labor Law – Management; and Litigation - Labor & Employment. According to U.S. News and World Report and Best Lawyers®, firms included in the 2021 "Best Law Firms" list are recognized for “professional excellence with persistently impressive ratings from clients and peers.” Achieving a tiered ranking signals “a unique combination of quality law practice and breadth of legal expertise.”

Weather and Work: Save This for a Rainy (or Snowy) Day

Inclement weather is a perfect storm for unusual employment law issues. If the forecast predicts bad weather (and in the Midwest, we know it’s just a matter of time!), read this article to make sure your inclement weather policies and practices are right as rain.

Should my business have an inclement weather policy?
Yes! It is helpful for both the company and your employees to have a written policy outlining clear expectations in the event of inclement weather. Consider adopting policies that explain what employees can expect if you have to close your business for a full or partial day, how you will notify employees of weather-related closures, who will make the decision to close the business in the event of inclement weather or another emergency, and whether employees will be paid for their time off. (Keep reading if you don’t have the foggiest idea about whether to pay those employees.)
You may also want to inform employees who they should call if they cannot safely come to work because of the weather. Your inclement weather policy can also provide safety information for employees. For example, if you work in an office building that has a tornado shelter, inform your employees of its location so they will be prepared when tornado season arrives.
Inclement weather can arise quickly, so having a plan in place is crucial so your employees aren’t left high and dry. An employment attorney can help your business develop an inclement weather      Continue Reading...
Remembering Jay Rector

“Work hard, treat each day as a gift, be humble, and try to have some fun along the way.”

This was Jay Rector’s advice to new lawyers. And it was more than lip service; it was how he lived his life. Sadly, that life ended too soon on September 7, 2020, when Jay died unexpectedly of a heart attack at the age of 61. Many of our readers knew Jay, so we wanted to share this tribute to him in our Blog.
Growing up with six siblings in the small town of Vinton, Iowa, Jay learned to work hard at an early age. He attended Iowa State University, where he worked harder at having fun than in classes. After graduating with a degree in industrial administration, he entered the workforce and spent five years with Phillips Petroleum in Bartlesville, Oklahoma.


Seeking a new challenge, Jay went back to school and pursued a law degree at the University of Iowa, where he did work hard. He graduated near the top of his class in 1989. Through serendipity, Jay took a job at Foulston in Wichita, where he became a partner and practiced for his entire legal career.
Jay loved being a lawyer. It was not just a job; it was his identity.
As a labor and employment lawyer, Jay represented some of the largest employers in Kansas. He received numerous recognitions as a top attorney in his practice area. Jay particularly enjoyed working collaboratively      Continue Reading...
Kansas Voting Leave Law 101

With elections looming on November 3, it is important for employers to prepare for leave requests associated with voting. Federal law does not require employers to provide leave to vote, but most states do, especially when work hours do not allow sufficient time to vote while the polls are open. Laws also vary between states on the amount of time, whether notice is required, whether the time is paid, and whether the employer can dictate which hours the employee may take leave to vote.

In Kansas, employees are entitled to two consecutive hours of paid time to vote. However, outside the lunch break, employers may specify when the two-hour period may be taken and can require that the two-hour period be taken prior to or after an employee’s regular working hours. For example, if the polls are open from 7:00 am to 7:00 pm and the employee’s scheduled shift is from 8:00 am to 5:00 pm, the employer does not have to provide paid leave because the employee has two consecutive hours after work to vote. Any employer who intentionally obstructs an employee from voting or imposes a penalty on an employee who takes leave to vote is subject to a class A misdemeanor.

One developing area of voting leave law is how employers handle the greater flexibility in voting. If the employee has the option to vote in advance or by mail, does the employee still qualify for leave? Kansas has not yet addressed this question, but      Continue Reading...

Fraudsters Target Kansas Unemployment Benefits

Before 2020, the record for most fraudulent unemployment claims filed in a year in Kansas was seven. That record has been shattered. This year the Kansas Department of Labor (KDOL) has already uncovered more than 45,000 fraudulent unemployment claims. And we still have three months to go!

The scheme primarily targeted expanded unemployment programs created by the Coronavirus Aid, Relief, and Economic Security (CARES) Act in the wake of the COVID-19 pandemic. The CARES Act expanded unemployment benefits to people traditionally unable to qualify, such as the self-employed and independent contractors. The fraudulent scheme has caused significant payment delays to Kansas families.

Fraudsters used victims’ personal information to file for unemployment benefits. According to the U.S. Department of Justice, most victims had their information exposed in a mass data breach. Other victims were victims of prior identity theft. Many victims did not learn of the fraud until the KDOL denied their claims as duplicative. The KDOL also discovered fraudulent claims after employers confronted employees for filing an unemployment claim while still being employed.

Kansas isn’t unique in this regard, as a nationwide investigation uncovered similar attacks in other states. The U.S. Department of Labor estimates fraudsters have filed $8 billion in fraudulent unemployment claims so far this year in the United States.

It is important that employers pay attention to each unemployment claim to curb additional fraud. Employers can report suspected unemployment fraud at www.reportfraud.ks.gov.

Meet Emily Matta

Emily Matta is the newest addition to Foulston’s labor and employment law team. She grew up in Wichita, where her parents owned a restaurant. Emily received her bachelor’s degree from Wichita State University and graduated from the University of Kansas School of Law.

Her parents’ restaurant had an unmistakable impact on her career path. “The restaurant opened when I was 10 years old, and I worked there every weekend until I graduated from Wichita State,” Emily says. “Over the years, I worked in every job we had – dishwasher, hostess, server, bartender, cook, and manager.”

Emily misses the family business, especially the food, but is grateful for the opportunity to help other employers navigate the same laws that caused her parents so many headaches. “I’m looking forward to making meaningful connections with clients and becoming intimately acquainted with the ins-and-outs of their businesses.”

Emily loves all things Kansas. She enthuses, “I’ve been to almost every corner of the state and have a running list of lesser-known roadside attractions and historic sites I’d like to visit.” Most recently, she took a trip to western Kansas to see Monument Rocks and Little Jerusalem State Park.

Learn more about Emily's practice here.

EEOC Updates COVID-19 Guidance for COVID-19 Testing and ADA Accommodations

On September 8, the EEOC updated its guidance with respect to what employers should know about COVID-19, the ADA Rehabilitation Act, and other EEO laws. Generally, the updates act to clarify previously taken positions of the EEOC.

Two of the important clarifications involve the EEOC’s position on administering COVID-19 tests to employees, and an employers’ ability to invite employees to request disability accommodations.

  1. Employers are still able to administer COVID-19 tests if they are accurate and reliable, but the EEOC notes the consideration of false positives and negatives. The EEOC also added the disclaimer that a negative test result does not mean the employee won’t contract COVID-19, and employers should continue requiring social distancing measures.
  2. Many employers are still operating from home. In preparation for returning to the physical workplace, the EEOC allows employers to invite employees to submit requests for disability accommodations in advance of their return. This would simply start the interactive process. Those employees who do not request an accommodation in advance would not be barred from later asking.
WARNing: Pandemic-Related Layoffs Could Bring WARN Act-Related Risks for Employers

Foulston partner Tara Eberline was recently interviewed by the Kansas City Business Journal about pandemic-related layoffs and potential legal risks for employers under the provisions of the WARN Act. If your company meets the particular criteria, the Act requires a 60-day notice for worksite closings and mass layoffs … with some exceptions. Read the full article in the Kansas City Business Journal here.
(NOTE: Paywalled, but guests may access.)

Employers Hit with FFCRA Lawsuits

Through the end of August there were at least 72 lawsuits filed against employers alleging violations of the Families First Coronavirus Response Act (FFCRA). In most of these cases, employees allege they were unlawfully fired after they contracted the virus or requested leave for one of the reasons protected by the FFCRA. In a few cases, employees say they were granted leave, but it was unpaid, and thus seek payment and other damages.

As a refresher, the FFCRA requires certain employers with fewer than 500 employees to provide their employees with paid sick leave and expanded family and medical leave for specified reasons related to COVID-19, which are subject to a corresponding tax credit. Generally speaking, and subject to certain exceptions, employers covered under the Act must provide employees up to two weeks (80 hours or a part-time employee’s two-week equivalent) of paid sick leave, at full pay (up to a $511 per day) if they are subject to a quarantine order related to COVID-19, have been advised by a healthcare provider to self-quarantine related to COVID-19, or are experiencing symptoms related to COVID-19. The Act also provides for up to two weeks of paid sick leave at two-thirds pay (up to $200 per day) to employees if they are caring for an individual who is subject to a quarantine order or has been advised by a healthcare provider to self-quarantine, and up to 12 weeks of paid sick leave and expanded FMLA leave at two-thirds pay (up to      Continue Reading...

Foulston Presents: HR Training Series Webinars

Join us this fall for the same HR Training Series you know and love – now in a virtual format! Foulston hosts these webinars for HR professionals, managers, and business owners in all industries across the region. Each session addresses HR issues that are important and relevant to employers. HRCI, SHRM, and CLE credit will be requested for webinar participants; just check the certification details at foulston.com/hrtraining.

Session Topics:

View the full series schedule with topic descriptions here.


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Don Berner, the Labor Law, OSHA, & Immigration Law Guy
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Boyd Byers, the General Employment Law Guy
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Jason Lacey, the Employee Benefits Guy
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