New Electronic Delivery Option for ERISA Retirement Plan Information (US)

MailThere is a new electronic delivery option for retirement plan sponsors who are looking for an easier and more efficient means of providing required plan information disclosures to plan participants and beneficiaries. Retirement plan administrators can now electronically notify participants and beneficiaries that certain disclosures are available on a specified website. In addition, retirement plan administrators can more easily directly deliver the disclosures by email. Participants and beneficiaries must be able to opt out of electronic delivery and to request paper copies of disclosures without cost. Notably, the new option is not approved for delivery of health and welfare plan disclosures at this time.

Background. Current rules for electronic delivery of documents date back to 2002, and many employers have found them difficult to utilize.

The 2002 rules[1] allow employers to use electronic delivery only for employees who (a) are “wired at work” (i.e., those who could access electronic disclosures at their job sites and who utilized their employers’ electronic information systems as an integral part of their jobs), or (b) affirmatively consent to receive documents electronically. The consent requirements are difficult because they require advance disclosure and identification of all documents and identification of necessary hardware and software requirements. In addition, the consent must be updated if hardware and software requirements change.

The new rule from the Department of Labor is not as onerous in terms of obtaining employee consent for electronic disclosures. It should make it easier and less expensive for plan administrators to distribute required retirement plan disclosures – particularly given the logistical and economic challenges that employers are facing as a result of the COVID-19 pandemic. Some of the details follow.
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Making a statement – is litigation assistance in breach of furlough rules? (UK)

Following on from the new Acas guidance on involvement in grievance and disciplinary meetings while on furlough comes the logical next question – where there are ongoing legal proceedings (we shall assume in the Employment Tribunal, but it could be anything), is an employee on furlough able to assist? Or will he thereby be deemed to be working for or providing services for his employer, neither of which he is allowed to do?  If you need one of your employees to prepare a witness statement, provide comments on a pleading (yours or the other side’s) or look out relevant documentation, will that require you to take him off furlough and potentially prejudice three weeks’ worth of your Job Retention Scheme support entitlement for him?

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Belgian Ministry of Employment blows hot and cold on pre-return temperature checks

Coronavirus themed Belgium FlagIn an attempt to keep Covid-19 out of the workplace, many employers have been inquiring about the possibility of performing temperature checks before employees enter their premises each day.

The Belgian Ministry of Employment’s position until last week was fairly relaxed: its FAQ document referred to the stance taken by the Belgian Data Protection Authority, which currently takes the view that simple superficial temperature checks where the result is not recorded do not constitute a processing of personal data. The Ministry of Employment thereby at least implicitly accepted that carrying out temperature checks in the workplace could be legitimate.

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WEBINAR May 28: Mandatory COVID-19 Updates to Injury and Illness Prevention Programs for California Employers (US)

The California Occupational Safety and Health Administration has issued new guidelines for protecting workers as businesses expand activities during the continuing COVID-19 pandemic. These guidelines include updated control measures as well as specific topics which must be addressed in employers’ COVID-19 response plans and written Injury and Illness Prevention Programs. Not only could failure to follow these guidelines result in adverse actions by CAL-OSHA, such deficiencies could also increase an employer’s liability in the event of suits regarding workplace exposure by employees or customers.

Join Michael Kelly, Matthew Cooper and Lilah Sutphen for a webinar on Thursday, May 28 at 2 pm PDT as they discuss this topic important to all California employers. Register at this link.

Updated OSHA Guidance Demonstrates Employers’ Need for Further Pandemic Planning (US)

On May 19, 2020, OSHA issued two updated memorandums to regional administrators and state plan designees. The first updated the agency’s enforcement guidance for recording COVID-19 cases in the workplace. As we discussed here, OSHA originally indicated on April 10, 2020 that it would be exercising “enforcement discretion” and focusing COVID-19 recordkeeping requirements in the healthcare, emergency response, and correctional institution fields only—except where there was objective evidence reasonably available to an employer that a COVID-19 case was work-related. The aim was to allow vital COVID-19 response resources to be allocated elsewhere.

The new memorandum rescinds the original guidance, however, and now states that all employers subject to its illness record-keeping rules (which is most employers) must now track and report workplace COVID-19 cases if the following three criteria are met: Continue Reading

White House Expands COVID-19 Travel Ban to Cover Brazil (US)

The Trump administration announced an expansion of its COVID-19 travel ban to include those seeking to enter the U.S. from Brazil.  The new Proclamation issued on Sunday, May 24, 2020, bars all non-U.S. citizens who have been physically present in Brazil during the 14-day period prior to entering or attempting to enter the United States.

Brazil joins the following countries that are already subject to similar COVID-19 travel bans: China; Iran; the European Schengen area: (Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, Switzerland, Monaco, San Marino, Vatican City); the United Kingdom and the Republic of Ireland. Continue Reading

“I Am Not Wearing That!” – What Can An Employer Do When An Employee Refuses To Comply With COVID-19 Workplace Requirements? (US)

With the reopening process well underway in all 50 states, employers are implementing a variety of plans, policies, and protocols to minimize the potential for employee transmission of the coronavirus in the workplace. These plans – discussed in our Employer’s Guide to Return-to-Work Issues – include making physical changes to the workplace, rearranging employee schedules, and other infection-mitigation measures. As part of these new protocols, many employers also are mandating that employees wear face coverings in the workplace, as well as practice, and adhere to, the now familiar six-feet-of-separation social distancing guidelines.

However, a vocal segment of our population find public health measures like social distancing to be unnecessarily restrictive, or even a violation of constitutional rights, and that requirements to wear face coverings infringe on personal freedoms.

So, what if you are an employer and have implemented a COVID-19 return-to-work protocol which includes a requirement that all employees wear face coverings, and one of your employees refuses to do so? Continue Reading

Department of Labor Continues to Loosen Restrictions on Calculating Overtime (US)

In what Labor Secretary Eugene Scalia called a step in the US Department of Labor’s (DOL) goal of lessening “unnecessary regulatory burdens” on businesses, on May 20, 2020 the DOL released a final rule regarding the calculation of overtime for salaried non-exempt workers with fluctuating workweeks. The rule change may encourage payment of additional incentive compensation to non-exempt employees paid using the “fluctuating workweek” (FWW) method of computing overtime without jeopardizing the advantageous overtime calculation.

Ordinarily, to calculate overtime, an employer determines a non-exempt employee’s regular rate of pay by dividing their total remuneration earned in the workweek by the number of hours worked, and then pays the regular rate plus an additional 50% of the regular rate for any overtime hours worked by the non-exempt employee. By contrast, the FWW formula of overtime payment allows businesses to pay employees whose hours vary widely from week to week overtime at diminishing rates, as long as they pay workers a fixed salary that is understood to be compensation for the variable work schedule, whether few or many hours. Because the workers are non-exempt, they are still entitled to payment of overtime. The regular rate of pay in the FWW method equals the quotient of the weekly salary and the number of hours worked, which changes as the number of hours vary. Then, because the weekly salary is intended to compensate the employee for all hours worked, overtime hours are paid at only 50% of the regular rate; no straight time pay is required for the overtime hours. Because hours worked vary from week to week – indeed, variable is a requirement of qualifying for the FWW method of computing overtime – this regular rate computation must be performed weekly, and the amount of overtime paid per hour decreases the more hours are worked. Continue Reading

IRS Guidance Provides Employers with the Ability to Offer a Second Open Enrollment Period for the 2020 Plan Year and Provides Greater Flexibility for Making Mid-Year Cafeteria Plan Elections (US)

Providing much needed assistance to employees’ who were blindsided by COVID-19 and who were incapable of making health care coverage elections with COVID-19 in mind, the IRS on May 12, 2020, provided temporary relief that allows employers, during 2020, to expand the permissible reasons for employees to make prospective mid-year election changes to their health care coverage, and contributions to health flexible spending accounts (FSA) and dependent care assistance programs (DCAP), beyond what is currently permitted under the law.

Additionally, in separate guidance, beginning in the 2021, the IRS increased the maximum health FSA year-end carryover amount from $500 to $550 relating to any unused health FSA balance remaining at the end of a plan year. Continue Reading

And now for something completely different – EU abuse principles sink self-serving contract variation

Quite a fun little case on TUPE this week, if you like that sort of thing (and on the upside, even if you don’t, at least it has nothing to do with COVID-19).

Regulation 4(4) of TUPE states that TUPE-related changes to terms of employment are void in most circumstances.  This has long been read as applying primarily to changes which are detrimental to the employee, as such changes run contrary to the overarching principle that employees’ contract terms are to be safeguarded on a business transfer.  The acquirer of a business is therefore stuck with those terms as they existed at the point of transfer.  But what if pre-transfer those terms have been made more beneficial to the employees, with a specific eye to the transfer?  There may be two reasons for this – first, the “poison pill” to make taking on the staff such an expensive prospect that no-one will buy the business or be willing to take over a service it currently provides, or business owners and directors amending their own contracts shortly pre-transfer to guarantee themselves a big salary and/or extended protections once the transferee arrives.

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