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American Rescue Plan Act Expands FFCRA Voluntary Leave Tax Credit Program
By: Tara Eberline

The American Rescue Plan Act of 2021 (ARPA), signed into law on March 12, 2021, extends the Families First Coronavirus Response Act’s (FFCRA) paid leave program for employees who must stay home to care for themselves or their families during the COVID-19 pandemic. Beginning April 1, 2021, eligible employers (generally private employers with fewer than 500 employees) may voluntarily choose to — but are not required to — extend and expand paid leave benefits under FFCRA and receive a corresponding tax credit.

Under ARPA, employers may offer employees up to 10 days (80 hours) of additional emergency paid sick leave (EPSL), plus up to 12 weeks of paid emergency family and medical leave (EFML), for qualified, COVID-related leave. In each case, this applies to leave taken between April 1, 2021, and Sept. 30, 2021. 

As before, qualified employers who offer this paid leave can receive reimbursement for the cost of the leave through a credit against payroll taxes — specifically, the employer’s share of Medicare taxes. Creditable costs continue to include the cost of the paid leave plus allocable health plan costs. Some new categories of creditable costs have also been added, which will be primarily relevant to collectively bargained employees (e.g., costs associated with apprenticeship plans). 

The ARPA makes some important adjustments to the scope of EPSL and EFML, including:

1. Paid Leave Hours Reset
The ARPA resets employees’ 80-hour paid leave bank for emergency paid sick leave. Employees who have used some or all of their 80 hours of EPSL can receive      Continue Reading...

New York Court Vacates Portions of FFCRA Regulations
By: Tara Eberline

On August 3, 2020, a federal judge in the U.S. District Court for the Southern District of New York invalidated several key portions of the U.S. Department of Labor’s (“DOL”) Final Rule implementing the Families First Coronavirus Response Act (“FFCRA”).

The FFCRA provides emergency paid sick leave and expanded family and medical leave to employees unable to work for certain qualifying reasons related to COVID-19. After Congress passed the Act, the DOL promulgated a Final Rule implementing the FFCRA’s provisions. Almost immediately, the State of New York filed suit against the DOL, claiming that several portions of the Final Rule exceeded the DOL’s authority under the FFCRA. The Court largely agreed with the State of New York, striking down the Final Rule’s (1) “work availability” requirement; (2) definition of “health care provider;” (3) employer consent for intermittent leave requirement; and (4) the requirement that employees provide documentation before taking FFCRA leave.
“Work Availability” Requirement
Under the Final Rule, employees are not entitled to emergency paid sick leave or expanded family and medical leave if their employer has no work available for them. The State challenged this requirement, arguing it was contrary to both the text and purpose of the FFCRA. The Court agreed, describing the DOL’s “barebones explanation” for the requirement as “patently deficient,” especially when considering      Continue Reading...
Sharing Difficult News With Employees
By: Tara Eberline

In the world of employee management, things unfortunately don’t always go as planned. From discipline meetings and performance evaluations to termination meetings, managers often have to share difficult news with employees. Finding an honest, respectful way to do so can be the difference between an employee on the path to improvement and one who throws a scene on his way out the door and drives straight to the EEOC to file a charge of discrimination. While there are numerous strategies for how to best navigate these difficult conversations, read on for a few suggestions on keeping these meetings on track.

Performance Evaluations
Performance evaluations are one of an employer’s most valuable tools for communicating with employees. They provide a built-in opportunity to give clear direction to employees about what is going well and what isn’t.
The most important rule when it comes to evaluations is to tell the truth, even when it’s difficult. Unfortunately, our workplaces are not in Lake Wobegone, and not all our employees are above average. If you have a low-performing employee, it is only fair to the employee and the employer to be honest with the employee about that performance. If an employee is performing acceptably in one area but not meeting expectations in another, the evaluation should explain to the employee in clear, simple language both the successes      Continue Reading...
Kansas Legislature (Finally) Finishes Record-Long 2015 Session
By: Tara Eberline

Hiring Preference, Reinstatement Rights, and Tuition Breaks for Veterans  

First, the Kansas legislature enacted HB2154, which allows private employers to “adopt an employment policy that gives preference in hiring to a veteran, provided that the veteran meets the requirements of the vacant position.” To establish a veteran’s preference policy, employers must have a written policy and apply the policy consistently to all decisions regarding initial employment. The preference is only available to veterans who provide proof of honorable discharge or general discharge under honorable conditions.
The bill also expands employment reinstatement rights to employees working in Kansas who return from being ordered to state active duty for the Kansas Army National Guard, Kansas Air National Guard, or other military forces. The employees must provide the employer adequate notice and be released from state active duty under honorable conditions to qualify for reinstatement. Previously, this reinstatement right did not apply to members of the National Guard who were employed outside of their affiliated state. 
A third provision of the law provides that veterans, active duty members of the armed forces, and their spouses and children are considered residents for purposes of receiving in-state tuition at the public colleges and universities throughout Kansas.
Changes to Unemployment Insurance
The second change affecting Kansas employers involves the state’s unemployment system. Current law sets a weekly cap on unemployment benefits at 60% of the employee’s average weekly wages, with a maximum of $474 per week. The new law limits maximum weekly benefits at 55% of the employee’s wages,      Continue Reading...
Governor Rescinds Anti-Discrimination Protection for LGBT State Employees
By: Tara Eberline

On February 10, 2015, Kansas Governor Sam Brownback rescinded an executive order that provided persons employed by the State of Kansas protection from discrimination on the basis of sexual orientation and sexual identity. The executive order was originally signed in 2007 by then-Governor Kathleen Sebelius. Brownback stated that any action to create additional protected classifications should be done by the legislature rather than by executive order. The rescinded executive order was replaced with one that Brownback says “reaffirms the commitment of the State of Kansas to employment practices which do not discriminate based on race, color, gender, religion, national origin, ancestry or age.”



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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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