BCLP At Work

Main Content

Employers Required to Pay Premiums for COBRA Continuation Coverage Until At Least September 30, 2021

May 3, 2021

Categories

Employers in the U.S. should remember that they may be required to pay for employees’ COBRA coverage this year.  The American Rescue Plan Act of 2021 provides that, for periods of COBRA coverage between April 1 and September 30, 2021, that were triggered by an involuntary termination of employment or a reduction of hours, 100% of the COBRA premium will be paid by the employer, health plan, or insurer, and the premium expense will be reimbursed by the federal government through a refundable FICA tax credit.

For more information, see the helpful blog post by our colleagues in the Employee Benefits and Executive Compensation group, which can be found here: DOL Flies Alone: Guidance on the 100% COBRA Subsidy under the American Rescue Plan Act of 2021

Chicago Employers Must Permit Time Off For COVID-19 Vaccination, Including Paid Time Off For Mandatory Vaccinations

Pursuant to the Chicago Vaccine Anti-Retaliation Ordinance that took effect on April 21, 2021, Chicago workers – including both employees and independent contractors – now have certain protections designed to safeguard access to a COVID-19 vaccination. Under the Ordinance, an employer, defined as any person or entity that engages the services of one or more individual for payment:

  • May not take adverse action against any worker for taking time during scheduled work time to obtain a COVID-19 vaccination;
  • May not require a worker to get vaccinated only during non-working (non-shift) hours; and
  • Must permit workers to use accrued or available paid time off, including but not limited to paid sick leave, for the purpose of getting vaccinated (as discussed here, the Illinois Department of Labor has more broadly encouraged all Illinois employers to permit employees to use available paid time off for this purpose).

In addition, if an employer has made vaccination mandatory for workers, then the employer:

  • Must compensate the worker for time, up to 4 hours per vaccine dose (one or two doses, as required based on the type of COVID-19 vaccine received), that the worker takes to get the vaccine, if the

Illinois Employers Must Report Gender, Race, Ethnicity and Compensation Data and Practices

Under amendments to the Illinois Business Corporation Act and the Illinois Equal Pay Act, certain corporations will be required, beginning in 2023 and continuing thereafter, to report data concerning the gender, race, and ethnicity makeup of their workforces, along with information about their compensation practices and efforts to comply with equal pay laws.  Much of this information will become public, and failure to report the necessary information can lead to significant penalties.

EEO Data Reporting

Illinois domestic corporations and foreign corporations authorized to do business in Illinois are already required by the Illinois Business Corporation Act to file certain annual reports with the Secretary of State.  Beginning with the corporation’s annual report filed on and after January 1, 2023, any such corporations which are also required to file an Employer Information Report EEO-1 with the Equal Employment Opportunity Commission (“EEOC”) must include with their annual report “information that is substantially similar to the employment data reported under Section D of the corporation’s EEO-1” report.

Employers should be aware that data on the gender, race and ethnicity of each reporting corporation’s employees will be published by the Secretary of State on its website within 90 days of receipt.

Equal Pay Registration

UK HR Two Minute Monthly: TUPE transfers to multiple transferees, public interest test in whistleblowing cases and unfair dismissal

April 12, 2021

Categories

Our April 2021 update includes a case which signals a potentially significant change in approach to TUPE transfers involving multiple transferees. We also consider a recent whistleblowing case in which it was considered that a disclosure of information affecting only one person could nevertheless be in the ‘public interest’, and provide an update on other recent points of note.

An employee can TUPE transfer to multiple transferees

In an important decision, the Employment Appeal Tribunal (EAT) has held that where a TUPE service provision change involves multiple transferees, the contract of employment of a transferring employee can be split between them, with the individual’s duties divided between the transferee employers. This has the effect of splitting the employee’s employment between employers with the employee working for (in this case) two employers. This is a departure from the more established “assignment” approach of dividing employees between transferees so that each employee works for only one transferee employer.

The case involved a transfer of a service from a single contractor to two new contractors, operating in different geographical territories. The EAT said there was no reason in principle why, following a service provision change, the employee could not hold two or more

Illinois Tightens Restrictions on Use Of Criminal Conviction Information

Restrictions on inquiring into, or using, criminal history information are not new to Illinois employers.  For years, Illinois employers been precluded from using an applicant’s arrest history when making hiring or other employment decisions.  And, in 2015, Illinois joined the list of “ban the box” states by precluding employers with 15+ employees from inquiring into or considering the criminal record or criminal history of an applicant until after the applicant was selected for an interview or had received a conditional offer of employment.

Effective March 23, 2021, the restrictions have tightened again, through amendments to the Illinois Human Rights Act (“IHRA”), which borrow concepts from the Equal Employment Opportunity Commission (“EEOC”) and the Fair Credit Reporting Act (“FCRA”).

Restricted Use of Conviction Records

The new IHRA provisions make it a civil rights violation for an employer to use a “conviction record” as the basis for any employment decision, including hiring, promotion, discipline and discharge, unless:

  1. There is a “substantial relationship” between one or more of the previous criminal offenses and the employment sought or held; OR
  2. The granting or continuation of employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals

Back to Life: Issues for UK employers as employees return to the workplace

At the time of writing, the Government has published its provisional roadmap out of lockdown and employers are beginning to consider when and how employees may return to the workplace. This article considers some potential options and possible risks relating to a return to work.

Can employers force employees to return to work after lockdown?

It is a general principle of English employment law that employees must comply with reasonable management instructions from their employer. This would include an instruction to attend work.

Whilst health and safety considerations have obviously called this into question during the pandemic, a requirement to return to work may still amount to a reasonable management instruction, depending on the type of workplace, the employee concerned and how easily the employee’s work can be carried out from home. To avoid potential disputes it would be sensible for employers to consult with staff as early as possible to discuss matters and try to seek agreement. This is particularly important if a return to work requires a change to any terms and conditions of employment, as that will require consultation. Employers should take care to consider each individual circumstance on its own merits and be as flexible as

Employee Benefits & Executive Compensation – Q1 2021 Newsletter

April 1, 2021

Categories

Our colleagues in the Employee Benefits & Executive Compensation group have been busy tracking the many changes to laws affecting comp and benefits. In their Q1 2021 newsletter, they provide an overview of the guidance that emerged during this busy period, including ARPA and CAA as they impact pension and welfare plans, fringe benefits and student loan assistance. They briefly address the guidance and implementation freeze, and provide an overview of other important developments — all with the aim of helping plan sponsors digest and comply with new and often imminent compliance obligations.

To read the newsletter, please click here.

Coronavirus (UK): Managing the rise of DSARs and redundancies during the Coronavirus pandemic

Introduction

During the Coronavirus pandemic, there has been a rise in the number of both redundancies and data subject access requests (“DSARs”). This rise has placed increased pressure on HR teams and Data Protection Officers (“DPOs’”), who are having to grapple with this burden alongside the other day to day challenges posed by the pandemic. This article provides a snapshot of the recent trends and some practical tips from our employment team for dealing with them effectively and/or minimising legal risk.

Redundancies

The Office for National Statistics (“ONS”) recently reported that there were 726,000 fewer people in payrolled employment in January 2021 compared to February 2020. More broadly, it has noted that the UK unemployment rate in the last quarter of 2020 was 1.3% higher than in the same period of 2019. In light of such figures, the ONS has commented that “the increase in UK redundancy rates during the Coronavirus pandemic is faster than during the 2008-2009 economic downturn”.

The Chancellor Rishi Sunak stated in his March 2021 Budget that, whilst Government interventions to support jobs have worked, and the Office for Budget Responsibility’s expected peak unemployment rate has lowered from 11.9% to 6.5%, job loss is very much

Key Amendments To FFCRA & California’s New COVID-19 Sick Leave Requirements

March 2021 brought a variety of legislative changes impacting California employers.  On March 11, 2021 President Joe Biden signed the American Rescue Plan Act of 2021 (the Act).  Among other things, including the widely publicized $1,400 stimulus payments, the Act extends the $300.00 federal unemployment benefit and the availability of the payroll tax credits to employers through September 30, 2021.  Additionally, for those employers who opt to continue to provide Families First Coronavirus Response Act (FFCRA)-type leave, the Act makes several significant changes to how the FFCRA is to be implemented with regard to both Paid Sick Leave and Emergency Family and Medical Leave (EFML).

Then, on March 19, 2021, California Governor Gavin Newsom signed Senate Bill 95 (SB 95), providing a new form of COVID-19 related paid sick leave for many California workers.  The new law, among other things, extends protections to employees who are teleworking and expands the qualifying reasons for COVID-19 sick leave.

We provide below a summary of the key amendments to FFCRA and highlight the requirements under the newly promulgated California COVID-19 supplemental paid sick leave.

Key Amendments Under The American Rescue Plan Act Of 2021

By way of review, employer obligations to provide paid

UK HR Two Minute Monthly: employment status, harassment and reasonable steps, workplace surveillance and unfair dismissal

The Supreme Court Delivers Verdict in Landmark Uber case

As we reported in our dedicated update, the Supreme Court gave judgment in the final appeal in relation to the Uber litigation at the end of February, unanimously concluding that the Uber drivers who brought claims against Uber in 2015 were workers within employment legislation.

Why this matters?

The outcome of this case has been long awaited given its importance to gig economy businesses. The Supreme Court found that the rights asserted by the drivers were not contractual rights but rather rights granted under statute. As such, while the contract between the parties is something that the courts can consider, the correct approach is to consider all the relevant circumstances, which will also include the relationship between the parties in practice and the general purpose of the legislation in question.

It is worth noting that this assessment must be carried out on a case-by-case basis and, as such, this decision does not determine the status of all gig employee workers. The issue of employment status therefore remains an area of debate.

Uber BV and others v Aslam and others

Employer unable to rely on “reasonable steps” defence in respect

The attorneys of Bryan Cave Leighton Paisner make this site available to you only for the educational purposes of imparting general information and a general understanding of the law. This site does not offer specific legal advice. Your use of this site does not create an attorney-client relationship between you and Bryan Cave LLP or any of its attorneys. Do not use this site as a substitute for specific legal advice from a licensed attorney. Much of the information on this site is based upon preliminary discussions in the absence of definitive advice or policy statements and therefore may change as soon as more definitive advice is available. Please review our full disclaimer.