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US COVID-19: Under the American Rescue Plan, Providing FFCRA Leave Remains Voluntary

The American Rescue Plan (“ARP”), signed into law by President Biden on March 11, 2021, does not place any new paid leave requirements on private employers who were previously covered by the Families First Coronavirus Response Act (“FFCRA”).  However, as they have been able to do through the first quarter of 2021, such employers may voluntarily continue to provide Paid Sick Leave (“PSL”) and Emergency Family and Medical Leave Act (“EFMLA”) leave as set forth in the FFCRA and receive certain payroll tax credits for such wages.

In addition, the ARP expands various aspects of the FFCRA:

Expansion of PSL:

  • Employees can be given a new 10-day allotment of PSL for use from April 1, 2021 through September 30, 2021, even if they exhausted their PSL days during 2020 or used PSL with the employer’s permission during the period January 1 – March 31, 2021.
  • PSL can be used for additional reasons (subject to the FFCRA requirement that the employee be unable to work due to the qualifying reason), specifically:
    • for leave needed when the employee is seeking or awaiting the results of a diagnostic test for, or a medical diagnosis of, COVID 19, where such employee has

US COVID-19: COVID-Related Leave – When Does The FMLA Apply?

COVID-19 has led to significant employee absences from the workplace.  While the federal Family and Medical Leave Act (FMLA) may well apply to certain such absences, employers must avoid the temptation to count all COVID-related leave against employees’ FMLA entitlement without considering the specific circumstances.  Over-designating absences as FMLA leave when the FMLA does not actually apply can create just as many legal issues as failing to designate covered absences under the FMLA.

For example, an FMLA interference claim may result if an employee is denied additional FMLA leave after the employee’s FMLA entitlement is exhausted due to absences that did not truly count as FMLA leave.  Conversely, by offering FMLA protections when the FMLA does not apply, employers may be establishing a right to reinstatement or other benefits when no such right should exist.  At a minimum, improperly designating absences as FMLA leave can create confusion and administrative nightmares.

Accordingly, COVID-related absences must be evaluated carefully and designated as FMLA leave only in appropriate circumstances.  As a general overview – but with the caveat that this post is not intended to provide legal advice concerning specific situations – below are examples of COVID-related situations in which the FMLA typically

Coronavirus (US): Key vaccination issues for employers – Part 3

As COVID-19 vaccines become more widely available and efforts are underway to increase dissemination, employers are considering whether to require employees to be vaccinated in order to be present on Company property.  This Q&A addresses key issues regarding a mandatory workplace vaccine program or policy. In Part 3 of the three-part article, we address more of the most commonly asked questions.

As a prefatory note to the questions and answers below, we strongly recommend employers consult with legal counsel when contemplating a workplace vaccine program.  While mandatory vaccination programs may generally be permitted, the federal Equal Employment Opportunity Commission (EEOC) has long taken the position in its pandemic guidance that employee vaccination should be encouraged rather than required.  As such, before implementing a mandatory program, employers should consider whether an alternative approach may be preferable for their workforce.  Examples of such alternatives include:  encouragement programs, voluntary incentive programs (which have their own set of risks), teleworking arrangements, mandatory diagnostic testing programs, and implementation of additional social distancing and protective measures.

(Click here to see Part 1, questions 1-6 and Part 2, questions 7-12)

(13) Should employers have a written policy or program? What about training?

Yes and yes

Coronavirus (US): Key vaccination issues for employers – Part 2

As COVID-19 vaccines become more widely available and efforts are underway to increase dissemination, employers are considering whether to require employees to be vaccinated in order to be present on Company property.  This Q&A addresses key issues regarding a mandatory workplace vaccine program or policy. In Part 2 of the three-part article, we address more of the most commonly asked questions.

As a prefatory note to the questions and answers below, we strongly recommend employers consult with legal counsel when contemplating a workplace vaccine program.  While mandatory vaccination programs may generally be permitted, the federal Equal Employment Opportunity Commission (EEOC) has long taken the position in its pandemic guidance that employee vaccination should be encouraged rather than required.  As such, before implementing a mandatory program, employers should consider whether an alternative approach may be preferable for their workforce.  Examples of such alternatives include:  encouragement programs, voluntary incentive programs (which have their own set of risks), teleworking arrangements, mandatory diagnostic testing programs, and implementation of additional social distancing and protective measures.

(Click here to see Part 1, questions 1-6.)

(7) What must an employer do if an employee refuses vaccination for a reason that requires a reasonable accommodation analysis (e.g.

Coronavirus (US): Key vaccination issues for employers – Part 1

As COVID-19 vaccines become more widely available and efforts are underway to increase dissemination, employers are considering whether to require employees to be vaccinated in order to be present on Company property.  This Q&A addresses key issues regarding a mandatory workplace vaccine program or policy. In Part 1 of the three-part article, we address six of the most commonly asked questions.

As a prefatory note to the questions and answers below, we strongly recommend employers consult with legal counsel when contemplating a workplace vaccine program.  While mandatory vaccination programs may generally be permitted, the federal Equal Employment Opportunity Commission (EEOC) has long taken the position in its pandemic guidance that employee vaccination should be encouraged rather than required.  As such, before implementing a mandatory program, employers should consider whether an alternative approach may be preferable for their workforce.  Examples of such alternatives include:  encouragement programs, voluntary incentive programs (which have their own set of risks), teleworking arrangements, mandatory diagnostic testing programs, and implementation of additional social distancing and protective measures.

(1) May an employer require employees who will be present on company property to obtain a vaccine when it becomes readily available to the general public?

Generally, yes; provided that

New OFCCP Director Appointment Signals Renewed Focus on Pay Discrimination

President Biden’s appointment of Jenny Yang to Director of the Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) on his first day in office signals a new direction in federal equal employment opportunity enforcement.  Prior to this appointment, Director Yang had a career as a plaintiff’s attorney before being appointed to Chair of the Equal Employment Opportunity Commission (“EEOC”) under the Obama administration.  Notably, during Director Yang’s time as Chair of the EEOC, the agency introduced a highly contested requirement for employers to disclose certain employee pay data when filing EEO-1 Reports.

We expect that many of the Biden administration’s equal employment initiatives, including a renewed emphasis on pay discrimination, will be vetted through the OFCCP by Director Yang.  The EEOC may not experience as much of an immediate sea change since the Republican EEOC commissioners will remain in place through 2022.

Importantly, the OFCCP has the authority to audit private employers’ hiring and pay practices if the employer falls within the agency’s jurisdiction, which is broadly defined and applies to approximately 25% of private employers.  For example, a private employer is a government contractor or a subcontractor under the OFCCP’s jurisdiction if it has 50 or more

US COVID-19: DOL Issues FMLA, FFCRA Guidance

The United States Department of Labor (DOL) wrapped up 2020 by issuing COVID-related guidance under both the Family and Medical Leave Act (FMLA) and the Families First Coronavirus Response Act (FFCRA).

FMLA Guidance

The DOL issued new FMLA guidance in the form of two “Field Assistance Bulletins” (FAB)[1], noting in a press release that the guidance is part of the DOL’s “ongoing efforts to support the American workforce through the pandemic recovery.”

In FAB 2020-7, the DOL addressed the employer notice provisions of various federal labor laws.[2]  With respect to the required posting of the general FMLA notice, the DOL explained that it will consider electronic posting by employers to satisfy the posting requirement when: (a) all hiring and work is done remotely; and (b) the employer posts the FMLA notice on an internal or external website that is accessible to all employees and applicants at all times.   To the extent an employer has a hybrid workforce (i.e. employees who work remotely and employees who work on-site), the DOL encourages employers to use electronic postings to supplement, not replace, their posting requirement of the general FMLA notice.

In FAB 2020-8, the DOL indicated that it

US COVID-19: New COVID Relief Bill (including FFCRA Tax Credit Amendments) Becomes Law

Late last night, President Trump signed the newest COVID relief bill into law.  The new law amends several federal relief laws, including the Families First Coronavirus Response Act (“FFCRA”).  Specifically, employers who voluntarily provide FFCRA benefits after the end of the year may receive tax credits for qualifying leave provided through March 31, 2021.

Additional information about the FFCRA amendments in the new law is available here.  We will continue to monitor developments, including any relevant guidance that the Department of Labor may publish.

BCLP has assembled a COVID-19 HR and Labor & Employment taskforce to assist clients with labor and employment issues across various jurisdictions. You can contact the taskforce at: COVID-19HRLabour&EmploymentIssues@bclplaw.com.   You can also view other thought leadership, guidance, and helpful information on our dedicated COVID-19 / Coronavirus resources page at https://www.bclplaw.com/en-GB/topics/covid-19/coronavirus-covid-19-resources.html

US COVID-19: New COVID Relief Bill Extends Certain FFCRA Tax Credits, But Does Not Mandate Extension of Leave Benefits

Late on December 21, 2020, Congress passed a new federal COVID relief bill, which, if signed into law, would amend a number of laws, including the Families First Coronavirus Response Act (“FFCRA”).  The FFCRA currently requires covered employers to provide eligible employees with paid sick leave and partially paid emergency family and medical leave benefits through December 31, 2020.

Notably, the new bill does not extend the FFCRA’s mandate that employers provide such leave beyond the end of the year.  Instead, the new bill allows covered employers to receive a tax credit for leave that they voluntarily provide to employees from January 1, 2021 through March 31, 2021, if such leave would otherwise be covered by the FFCRA.

In practice, this means that if the new bill becomes law, under federal law:

  • Employers will not be required to provide paid sick leave or partially paid emergency family and medical leave under the FFCRA beyond December 31, 2020.
  • Employers may voluntarily provide paid sick leave or partially paid emergency family and medical leave under the FFCRA after December 31, 2020.
  • If an employer voluntarily provides such leave benefits after December 31, 2020, they may be eligible for a tax

US COVID-19: DOL Issues Revised FFCRA Regulations In Response to NY Decision

In August, we informed you of a decision by a federal district court in New York (the “Court”) that invalidated four key provisions of the federal Department of Labor’s (“DOL”) regulations interpreting the Families First Coronavirus Response Act (“FFCRA”).  On September 11, 2020, the DOL acknowledged the nationwide impact of the Court’s ruling, and issued much-anticipated revised regulations addressing the four provisions.  The new regulations will be formally published, and become effective, on September 16, 2020.

As described in detail below, in the new regulations, the DOL: (a) affirmed the “work-availability” requirement; (b) affirmed the “employer consent” requirement for intermittent leave; (c) narrowed the scope of the “health care provider” definition for purposes of the available exemption from the leave entitlement; and (d) clarified the timing of notice and documentation requirements.  The DOL also provided new and revised Q&As on these subjects (see Q&A #s 16, 21, 22, 56, and 98-103).

Work-Availability

In the revised regulations, the DOL held firm to the requirement that employees are only entitled to leave if they are unable to work “because of” a COVID-19 qualifying reason.  The DOL addressed the Court’s concerns with consistency by clarifying that this work-availability requirement applies to all qualifying reasons

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