EEOC Reminds Employers: Antidiscrimination Laws Continue to Apply During the COVID-19 Pandemic (US)

eeocThe United States currently is experiencing an unprecedented public health emergency due to the COVID-19 virus.  The economic fallout of this crisis has been sudden and brutal on US employers, with vast numbers of businesses ordered to close and nearly 1 million new unemployment claims filed in the past two weeks alone.  In response, Congress has passed several new laws to take emergency action to address the impact on employers and employees.  These laws and the speed at which they were put in place has left many overwhelmed and with many questions about what obligations they impose and how they will operate, if they can at all, through this crisis.

Although there is a certain feeling that in unprecedented times like this, employers should have more flexibility to take what could be potentially business-saving measures, no matter how drastic, it is important for employers to remember that, even during these trying times, the laws enforced by the US Equal Employment Opportunity Commission (EEOC)—including Title VII of the Civil Rights Act, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), the Rehabilitation Act, and the Genetic Information Nondiscrimination Act (GINA)—all continue to apply.  Indeed, the EEOC has made clear that employers’ obligations under these laws do not interfere with or prevent employers from following the guidelines and suggestions made by the Centers for Disease Control (CDC) or from complying with state and local public health authorities concerning steps employers should take regarding COVID-19. Continue Reading

Next steps in vicarious liability – no liability for employee’s personal vendetta (UK)

Back in 2016 we commented on the increasing breadth of the vicarious liability concept as seen in a claim against supermarket chain Morrisons [here].  The store was held liable to a customer who was violently assaulted by one of its petrol station attendants in direct contravention of the criminal law, his training and all reasonable principles of putting the customer first.  Last year the High Court extended it even further in a decision which made difficult reading for employers and their insurers.

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US Department of Labor Publishes Regulations Clarifying Various Aspects of the Families First Coronavirus Response Act (US)

Some questions answered, many still remain

On April 1, 2020, the U.S. Department of Labor (DOL) released new regulations (29 CFR Part 826), attempting to clarify certain provisions in the Families First Coronavirus Response Act (FFCRA).  As we previously reported here, under the Emergency Paid Sick Leave Act provision of the FFCRA, certain public employers and private employers with fewer than 500 employees must provide up to eighty (80) hours of emergency paid sick leave (a prorated amount for part-time employees) (EPSL) if the employee is unable to work or telework because of one of these six qualifying reasons:

  • The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  • The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  • The employee is experiencing symptoms of COVID-19 and seeking medical diagnosis from a health care provider;
  • The employee is caring for an individual who is subject to a quarantine or isolation order or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  • The employee is caring for his or her son or daughter whose school or place of care has been closed for a period of time, whether by order of a State or local official or authority or at the decision of the individual school or place of care, or the child care provider of such son or daughter is unavailable, for reasons related to COVID-19; or
  • The employee has a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretary of the Treasury and the Secretary of Labor.

The DOL’s regulations – notable for the speed in which they were published, about a week after the FFCRA became law – help to explain the reasons for which EPSL may be taken with greater precision.

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IRS Guidance Enables Employers to Immediately Access Tax Credits Under Coronavirus Relief Legislation (US)

Tax credits may be available to employers who are required to pay additional wages to employees under the Families First Coronavirus Response Act (the “FFCRA”).  Specifically, tax credits may be available to employers who are required to pay employees under the Emergency Sick Pay Leave and the Emergency Family and Medical Leave portions of the FFCRA (the “Leave Acts”).

In addition, the Coronavirus Aid, Relief, and Economic Security Act (“CARES” Act) may provide an employer with an “Employee Retention Tax Credit” for wages to paid to active or furloughed employees, in certain circumstances where either (a) the business cannot operate due to a government order, or (b) gross receipts from business have declined by more than 50%.  Generally, the Retention Credit is equal to 50% of the qualified wages paid to an employee, with the maximum allowable credit being $5,000 per employee. Continue Reading

SBA Publishes Sample Application for Paycheck Protection Program Loans Under CARES Act (US)

Employers with fewer than 500 employees and those that are under the applicable Small Business Administration size standards have been eagerly awaiting more information on how to apply for and obtain loans under the “Paycheck Protection Program” (PPP) portion of the CARES Act, passed to address the economic impacts of the ongoing COVID-19 pandemic.  The PPP is intended to provide an incentive to small businesses to retain their workers during this crisis by offering government-backed loans that, if the applicable conditions are met – including keeping employees on payroll for eight weeks and using the loan proceeds for payroll, rent, mortgage interest, or utilities – will be forgiven.  A more detailed summary of the PPP, including eligibility criteria and other loan conditions, is available here.

On March 31, 2020, the SBA notified the public that those interested in obtaining a PPP loan may apply as soon as April 3, 2020 with any existing SBA Section 7(a) lender, or through any federally insured depository institution, federally insured credit union, and Farm Credit System institution that is participating.  The SBA additionally indicated that other regulated lenders would be available to make PPP loans once they are approved and enrolled in the program. Continue Reading

NLRB Holds Provisions in Voluntary Severance Agreement Are Not Unlawful “Work Rules” (US)

NLRB LogoIn non-coronavirus related developments, on March 16, 2020, the National Labor Relations Board (NLRB or Board) issued a decision in Baylor University Medical Center, reversing an Administrative Law Judge (ALJ) decision that found certain severance agreement provisions to be unlawful under Section 8(a)(1) of the National Labor Relations Act (NLRA).  Section 8(a)(1) prohibits employers from interfering with employees’ rights to act collectively to improve the terms and conditions of their employment.  The decision is noteworthy as another example of the current Board’s effort to rein in the sort of overexpansive interpretations of the NLRA that were the legacy of prior Boards.

The severance agreement provisions at issue, used regularly by Baylor’s Medical Center for employee separations, were as follows. Continue Reading

UPDATED: New York State Issues Additional Guidance for Emergency Paid Sick Leave Bill (US)

New York State’s COVID-19 sick leave law has been in effect since March 18, 2020 (see our prior posts here and here). Since then, several questions have remained largely unanswered for both New York employers and employees as they navigate the eligibility and application requirements of the new law, which offers individual job-protected paid or unpaid sick leave as well as expanded paid family and disability benefits for employees.

Fortunately, the state has provided some additional guidance through its recently updated FAQ, including: Continue Reading

UPDATE: US Department of Labor Publishes Further Guidance Concerning Paid Sick Leave and Paid FMLA Leave under FFCRA; Finally Clarifies Small Business Exemption (US)

Department of Labor - USA

Since the Families First Coronavirus Response Act (FFCRA) became law last week (amazing how long ago that feels, right?), the US Department of Labor (DOL) has been publishing and updating guidance concerning the public health emergency paid sick leave and emergency Family and Medical Leave Act (FMLA) leave required under the law.  (See our prior posts here and here).  As of March 29, another 21 questions-and-answers have been added to the DOL’s Q&A webpage.  The newly-added questions and answers appear at Questions 38 through 59.

The most recent guidance addresses some of the most significant questions arising under the new law, including as follows.

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NLRB General Counsel Issues Memorandum Summarizing Bargaining Obligations During Emergency Situations (US)

NLRB LogoFor those employers whose employees are represented by labor unions, the extraordinary circumstances brought about by the COVID-19 pandemic have presented unique complications not shared by their employer counterparts whose operations are union-free.  Under the National Labor Relations Act (NLRA), an employer is obligated to bargain with its employees’ exclusive bargaining representatives concerning mandatory subjects of collective bargaining.  These include, among other things, wages, hours of work, furloughs, and layoffs.  With this obligation to bargain also comes a prohibition on taking unilateral action – that is, making changes to mandatory subjects of bargaining – without first reaching agreement with the employees’ representative, or reaching an impasse in negotiations.  To facilitate those negotiations, unions are entitled under the NLRA to request that employers provide information relevant to any proposed changes in employees’ terms or conditions of employment, which can slow down the bargaining process.

But we are in strange times, unlike any that have existed since the NLRA became law in 1935.  Given the existential threat posed to employers by the COVID-19 pandemic, particularly those impacted by government stay-at-home orders and other orders prohibiting certain industries from serving the public (restaurants, movie theatres, etc.), it is not exaggeration to say that employers must make immediate, often momentous decisions impacting not only their business, but their employees.

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The CARES Act of 2020: Key COVID-19 Relief Provisions Impacting Your Employer-Sponsored Benefit Plans (US)

The Coronavirus Aid, Relief, and Economic Security (CARES) Act of 2020, enacted and sent to the President for his signature on March 27, 2020, is bipartisan legislation providing more than US$2 trillion in relief for both companies and families affected by the coronavirus disease 2019 (COVID-19) pandemic. It includes a number of provisions designed to help employers and employees contend with a scaled-back workforce and other economic fallout.

In this update, we take a close look at some of the provisions that relate to retirement plans and the payment of employment taxes. Additional taxation-related provisions are covered in a separate client alert. Continue Reading