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EEOC Updates COVID-19 Guidance for COVID-19 Testing and ADA Accommodations
09/22/2020
By: Morgan Geffre

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
09/18/2020
By:

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
09/16/2020
By: Boyd Byers

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...

 
DOL Revises Paid Leave Requirements Under FFCRA
09/14/2020
By: Boyd Byers

On Sept. 11, 2020, the U.S. Department of Labor issued revisions to its regulations that implement the paid sick leave and expanded family and medical leave provisions of the Families First Coronavirus Response Act (FFCRA). The revised rule will take effect on Sept. 16, 2020, when it will be published in official form.

Revised Regulations Respond to Court Ruling

These revisions were made to clarify workers’ rights and employers’ responsibilities under the FFCRA’s paid leave provisions in light of a New York court’s order finding portions of the initial regulations invalid. Specifically, the court set aside four parts of the regulations: (1) the requirement that paid sick leave and expanded family and medical leave are available only if an employee otherwise has work from which to take leave; (2) the requirement that an employee may take FFCRA leave intermittently only with employer approval; (3) the definition of an employee who is a “health care provider,” whom an employer may exclude from being eligible for FFCRA leave; and (4) the statement that employees who take FFCRA leave must provide their employers with certain documentation before taking leave.
In its revised regulations, DOL does the following:

  • Reaffirms and provides additional explanation for the requirement that employees may take FFCRA leave only if work would otherwise be available to them.
  • Reaffirms and provides additional explanation for the requirement that an employee must obtain employer approval to take FFCRA leave intermittently.
  •      Continue Reading...
 
DOL Updates FFCRA Q&As for Fall 2020 School Year
08/31/2020
By: Morgan Geffre

The Department of Labor continues to update the Q&As regarding the Families First Coronavirus Response Act (FFCRA). The recent updates have big impacts on parents of school-aged children as schools tackle the decision of how to move forward. No matter what local schools and parents decide, it is important that employers be prepared.

Hybrid Learning: Under this model, children would alternate between days attending school in person and participating in remote learning. Here, parents would be allowed to take FFCRA leave on the days that the child is home participating in remote learning, because school is effectively “closed” on the days of remote learning. The requirement still applies that the employee must actually need to care for the child during that time and there is no other suitable person to do so.

Remote Learning: Some schools are choosing to proceed with only remote learning because of COVID-19. Employees with children who attend such schools would be eligible for FFCRA leave while the school is closed, as long as the employee meets the other requirements. In the event the school reopens at a later time, the employee may lose FFCRA eligibility.

Elective Remote Learning: If an employee has the option of allowing his or her child to attend in person classes or participate in remote learning, the situation changes. Employees who voluntarily sign up for remote learning out of fear their child will contract COVID-19 will lose eligibility for leave under the FFCRA because the school      Continue Reading...

 
Kansas COVID-19 Immunity Law Raises Questions for Employers
06/11/2020
By: Sarah Stula

With the economy largely reopened, but COVID-19 cases continuing to fluctuate, some businesses are concerned about lawsuits from customers and guests who may be exposed to, and subsequently become ill from, the coronavirus while on their premises. In June, the Kansas Legislature addressed these concerns when it passed the COVID-19 Response and Reopening for Business Liability Protection Act, which, among other things, grants Kansas businesses immunity from COVID-19-related civil claims if they substantially comply with required “public health directives.” Here are three things Kansas employers should know about the Act.

(1) What does the Act do?
The Act grants immunity from liability in a civil action for a COVID-related claim to any person conducting business in Kansas who substantially complies with required public health directives. The Act broadly defines “person” to include individuals, for-profit businesses, non-profit organizations, and government entities. One example of a situation that may be covered is when a patron dines in at a restaurant and later tests positive for COVID-19. Even if the patron can show causation by linking her COVID-19 exposure to the restaurant, then the Act may shield the business from civil liability if the restaurant substantially complied with applicable public health directives.

(2) What are “public health directives”?
The Act defines “public health directives” as any federal, state, or local statutes, rules, and regulations regarding COVID-19 that entities or individuals are required by law to follow.

(3) How long is the Liability Act in effect?
The Act retroactively applies to claims      Continue Reading...

 
Maintaining Privacy and Data Security with a Remote Workforce
04/08/2020
By: Daniel Buller

In response to stay-at-home orders, many businesses have been forced to quickly transition from traditional offices to remote working environments. Working from home presents a new set of cybersecurity challenges to maintain privacy and confidentiality standards.

Threats to Data Security
Cyber criminals are using COVID-19 to exploit vulnerabilities, prompting the FBI to issue multiple press releases related to COVID-19 schemes since March 20. Businesses should take appropriate precautions to stay ahead of potential scams.
Understand and mitigate risks associated with third-party platforms. Paid versions of third-party platforms often come with increased security protocols. Implement automatic safety measures and provide staff training on enhanced security features.
Emails with information about COVID-19 are being used to unleash ransomware and social engineering attacks. A remote-access Trojan virus can give a cybercriminal administrative control over your device or network and result in demands for payment. Other schemes include donation requests to fictional charities, fake offers of immediate approval of SBA loans for a fee, fraudulent links to purchase hard-to-find personal protective gear, home COVID-19 testing equipment, and cure-all medications. 
Social engineering attacks often use fear and intimidation to create a sense of urgency in an effort to trick users into taking immediate action, like clicking on a      Continue Reading...
 
U.S. Department of Labor Issues Regulations Explaining Paid Sick Leave and Expanded FMLA Benefits Under FFCRA
04/01/2020
By: Teresa Shulda

Today, the U.S. Department of Labor issued its regulations to implement the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act, both of which are part of the Families First Coronavirus Response Act (FFCRA or Act). The FFCRA, which became law on March 18, went into effect today, April 1.

The FFCRA
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 100% refundable tax credit.
Generally, 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, they 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      Continue Reading...
 
DOL Issues FFCRA Employee Notice Form
03/25/2020
By: Boyd Byers

This afternoon the United States Department of Labor (DOL) issued its model notice of employee rights regarding paid sick leave and expanded family and medical leave under the Families First Coronavirus Response Act (FFCRA). The model notice describes information regarding the FFCRA’s paid leave entitlements, eligibility requirements, qualifying reasons for leave related to COVID-19, and the DOL’s enforcement authority. A copy of the notice is available here.

Employers are required to post this notice in conspicuous places on their premises where notices to employees are customarily posted. However, the posting requirement does not become effective until the FFCRA’s effective date, which the DOL says will be April 1. Prior to that date, the DOL will be issuing regulations that should help clarify some ambiguities and further explain employer obligations under the FFCRA. Accordingly, it may make sense for employers to hold off on posting the notice until then, because posting could generate questions about issues on which we are still waiting for DOL guidance. Employers should discuss this with their legal counsel.
You can read Foulston's issue alert about employers’ obligations under the FFCRA here. We’ll provide further information when the DOL issues its regulations. Stay tuned!
 
Coronavirus: Tax and Employee Benefit Considerations – Part 2
03/24/2020
By: Jason Lacey

Employer-sponsored group health plans have drawn attention regarding coverage for certain coronavirus-related costs.

Under the FFCRA, all group health plans are now required to provide coverage for COVID-19 testing without imposing deductibles, copayments, or other cost sharing — and without requiring prior authorization or imposing other medical management standards. This coverage must include both the cost of the test and related services, such as charges for office, telehealth, urgent care, or ER visits and charges for the collection of testing samples. The testing mandate applies to all types of group health plans, including fully insured plans, self-insured plans, high deductible health plans (HDHPs), and plans that are otherwise “grandfathered” from certain ACA requirements. The mandate also applies to fully insured plans sold in the individual insurance market.

This mandate only applies to coverage of COVID-19 testing and related services. Coverage of treatment for COVID-19 remains subject to the terms of each plan, including applicable cost sharing requirements.

IRS Notice 2020-15 clarifies that an HDHP may provide benefits for COVID-19 testing or treatment prior to satisfaction of the minimum deductible without jeopardizing the plan’s status as an HDHP. Individuals covered under an HDHP may receive no-deductible or low-deductible coverage for these costs and remain eligible to contribute to a health savings account (HSA).

A new package of proposed federal legislation, currently called the CARES Act, would provide additional flexibility with respect to HDHPs and HSAs:

  • An HDHP could provide for coverage of telemedicine visits even if the HDHP deductible has not been      Continue Reading...
 
Coronavirus: Tax and Employee Benefit Considerations – Part 1
03/23/2020
By: Jason Lacey

The Families First Coronavirus Response Act (FFCRA), which was enacted on March 18, 2020, established two new categories of paid leave to assist workers needing time off for certain coronavirus-related purposes: (1) up to two weeks of paid sick leave, and (2) up to ten weeks of paid FMLA leave. These paid leave mandates apply to private sector employers with fewer than 500 employees and public sector employers of any size.

Although the FFCRA requires covered employers to provide these new types of paid leave to qualifying employees, it establishes a process for eligible employers to obtain reimbursement from the federal government for the cost of the paid leave through refundable credits against Social Security payroll taxes. The tax credit is available to all private sector employers that are subject to the FFCRA paid leave mandates, regardless of the type of entity (C corporation, S corporation, partnership, LLC, or sole proprietorship). Public sector employers are expressly excluded from eligibility for the tax credit, although they are subject to the paid leave mandates. Private sector employers with 500 or more employees also are not eligible for the credit, even if they voluntarily provide paid leave that mirrors the FFCRA requirements.

An eligible employer’s payroll tax credit for each calendar quarter is an amount equal to 100% of the qualified sick leave wages and 100% of the qualified family leave wages paid by such employer for the quarter. The credit is limited to the maximum amount of the paid leave required to be paid      Continue Reading...

 
Families First Coronavirus Response Act Becomes Law
03/19/2020
By: Sarah Stula

Last week, the U.S. House of Representatives passed the Families First Coronavirus Response Act (H.R. 6201), which, among many other things, provides paid leave for employees who must stay home to care for themselves or their families during the COVID-19 pandemic. Yesterday, the Senate passed the Act, and President Trump signed it into law. The Act makes sweeping changes to the Family and Medical Leave Act (FMLA) and has immediate consequences for employers.

The Act creates two types of paid leave: (1) up to two weeks of sick leave for an employee who is subject to quarantine or experiencing COVID-19 symptoms, is caring for someone who is quarantined or ill, or is caring for a child who cannot go to school; (2) and up to 12 weeks of FMLA leave for an employee to care for a child who cannot go to school or daycare because of COVID-19. Employers will be subsidized for the paid leave through tax credits.
Employers must prepare to implement the Act as soon as possible. Though a deep dive is needed to fully understand your organization’s obligations under the Act and implement a compliance plan, here are some of the important things you should know right now.

1. When is the Act effective?

The new paid leave rules will take effect “not later than” April 2, 2020, and expire on December 31, 2020.
 
2. Which employers are      Continue Reading...
 
Employer Tips for Managing COVID-19
03/12/2020
By: Teresa Shulda

Now that positive cases of the coronavirus (COVID-19) have been confirmed in Kansas and Missouri and the WHO has declared the outbreak a pandemic, local employers must act quickly to create plans to prevent the spread of the virus in the workplace, educate employees about how to reduce the risk of exposure and transmission, and consider their obligations under the FMLA and ADA. The following are important tips and resources as employers prepare for the potential spread of COVID-19.  

Promote a Safe Work Environment
Employers have a legal duty to maintain a safe workplace. For example, the Occupational Safety and Health Act requires an employer to provide a workplace that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm to [its] employees.” Recently, the Occupational and Safety Administration (OSHA) indicated that an employer has a duty under this Act to take steps to prevent occupational exposure to COVID-19. That means employers should take feasible measures to reduce the likelihood that employees will be exposed to COVID-19.
Importantly, employers who allow employees to wear respirators should provide disclosure information required by OSHA, and those who require employees to wear respirators should follow OSHA rules for implementing a respiratory protection program, including the proper fit-testing procedures and      Continue Reading...
 


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