Summary

The extension of the UK off-payroll working rules to private sector clients, due to take effect from April 2020, has been delayed by one year. This follows growing calls from businesses and business leaders given the difficult and uncertain times faced by many in light of the coronavirus pandemic. This is a huge relief for many contractors and businesses but it is just a postponement. The extra time should be used wisely to prepare for the changes; given the year-long extension it is unlikely that HMRC’s promise not to be ‘heavy handed’ on penalties during the first year of IR35 will stand.

The delay may, however, put some in a difficult position. If, in anticipation of the new rules coming into force, it has already been determined by a private sector client that a relationship would be one of employer/employee if the intermediary was not involved, the intermediary (in most cases the contractor’s PSC) should seriously consider operating PAYE and account to HMRC for employer/employee NICs and employee income tax accordingly. HMRC previously stated that it will not carry out targeted campaigns into earlier tax years where a client determines that a worker would be an employee if engaged directly by the client. However, HMRC may see things differently if a determination has been made in relation to the current working arrangements, in anticipation of the new rules coming into force, and that determination is now ignored. Some contracts may also already have been re-negotiated on the basis of

Summary

We understand that our clients and contacts will be addressing complex COVID-19 / Coronavirus related HR issues in multiple jurisdictions. BCLP, together with our local counsel friends, have produced a global Q&A document answering nine key HR issues, covering 35 jurisdictions.

Our global Q&A document answers FAQs about HR issues arising from Coronavirus / COVID-19 across 35 jurisdiction including the United Kingdom, United States, Bulgaria, Hong Kong, Germany, Italy, Republic of Ireland, South Africa and Ukraine.

Download the HR Q&A to read about issues affecting your country >

We have written advice covering the following questions:

• What if an employee refuses to attend work due to fear of the coronavirus?
• What if an employee refuses to undertake work travel to an ‘at risk’ area?
• Can an employee be stopped from holidaying to an ‘at risk’ area?
• If an employee is off sick due to the coronavirus are they entitled to sick pay?
• What should we do if someone suffering from the coronavirus comes into the workplace?
• What if the workplace needs to be closed?
• Can an employee be required by their employer to ‘self-isolate’?
• What physical measures should employers be taking?
• How should employers deal with discriminatory behaviours?

If you have any questions that we have not covered, please contact any member of the team and we could be happy to help.

As employers navigate the implications of COVID-19 and the workplace, one of the subjects to keep in mind is the federal Family and Medical Leave Act (FMLA).  Employers should be aware that currently pending legislation would temporarily amend the FMLA to, among other things, change the scope of the employers covered by the FMLA (with respect to the new provisions), expand eligibility in certain respects, and provide certain paid leave obligations in light of the novel coronavirus (COVID-19).  If that legislation becomes law, employers are encouraged to consult legal counsel to assess what, if any, new obligations they may have.

In the meantime, this post is intended to provide employers with reminders and recommendations for complying with the current version of the FMLA. In addition to reviewing this post, employers should review the FMLA guidance issued recently by the U.S. Department of Labor (DOL):  https://www.dol.gov/agencies/whd/fmla/pandemic.

Eligibility:  Resist the urge to make FMLA available for everyone regardless of eligibility status.

• While making FMLA leave available to all may seem generous, the DOL has emphasized that it is not permissible to count leave against an employee’s 12-week FMLA entitlement if the employee is not yet eligible for leave (i.e., has not worked for the employer for 12 months, has not worked 1,250 hours in the 12 months before the leave is to begin, or does not work at a location with 50 employees in a 75 mile radius).
• Rather than providing “FMLA leave” to an employee who is not yet
  

With the novel coronavirus (“COVID-19”) continuing to spread across the country, the U.S. House of Representatives (“House”) voted in the early hours of March 14, 2020 to provide emergency relief to Americans through the Families First Coronavirus Response Act (the “Act”).  While the Act has not yet become law – it must still be passed by the U.S. Senate and signed by President Donald Trump – it is already getting a great deal of attention.

The version of the Act that the House first adopted on March 14th included a variety of resources and benefits, including emergency paid sick leave and emergency paid family and medical leave, for which the Act provides covered employers with a tax credit.  Just two days later, however, on March 16, 2020, the House voted to trim back some of these benefits with respect to emergency paid family and medical leave.

Below is a summary of the latest version of the Act’s highlights for employers; however, employers should note that if the Act becomes law, the emergency paid leave provisions described below will generally only apply to private employers with fewer than 500 employees and to government employers.

In addition, employers should also note that if the Act becomes law, it will take effect 15 days after President Trump’s execution of the law and will remain effective until December 31, 2020.

Emergency Paid Sick Leave

• Under the Act, full-time employees will immediately become entitled to up to 80 hours of emergency paid leave

As the Coronavirus spreads on a worldwide level, employers have started to put into place certain measures group-wide, to limit risks of contagion, such as forbidding travel to certain countries (mainland China, South Korea, Northern Italy, Iran and Singapore) or restricting non-essential travel to certain regions (such as Asia). In addition to these measures, employers may quarantine staff which have returned from a dangerous zone or have been in contact with a contagious person.

What rules would apply during the quarantine?

During the quarantine period, the employer can request employees to work remotely if the nature of their work so justifies and if the employee has tools to do so. Certain companies are now requesting their employees to bring back their laptops home daily so that employees are ready to work remotely if they need to be quarantined urgently.

In France, an employer may impose such remote work to all employees who are able to work remotely to ensure business continuity and the employees’ protection, without obtaining their approval and without any specific formalism (a simple email would suffice), in the event of exceptional circumstances, such as the Coronavirus epidemic.

Remote work may also be envisaged if an employee’s children are prevented from going to school and are put on quarantine. In such a case, employees are required to inform their employer thereof and check if they can work remotely.

Would the employer be required to pay the employee during the quarantine if s/he cannot work remotely?

As the coronavirus disease 2019 (COVID-19) continues to spread, U.S. employers considering taking preventative measures to reduce transmission should bear in mind employment laws that may restrict certain precautions, including the Americans with Disabilities Act (“ADA”).

Basic precautionary measures like promoting washing hands, encouraging employees to stay home when they are sick, and other good hygiene practices recommended by the Centers for Disease Control and Prevention (“CDC”) are unlikely to raise concerns under the ADA.  Indeed, recent guidance from the Equal Employment Opportunity Commission (“EEOC”) makes clear that the CDC’s guidelines and suggestions for employers regarding COVID-19 do not violate the ADA.

However, the ADA does prohibit covered employers from excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a “direct threat” (i.e., a significant risk to the health or safety of others that can’t be eliminated by reasonable accommodation).

Nonetheless, it is likely permissible for employers to ask employees who travel to or from an area affected by COVID-19 to work from home or, if remote work is not possible, take leave for 14 days (the incubation period for COVID-19) because the employees pose a direct threat under the ADA.   Whether the leave period must be paid or can be unpaid depends mostly on the employee’s classification under the federal Fair Labor Standards Act as “exempt” or “non-exempt,” the particular state laws of the state in which the employee works, and the employer’s own sick leave policies.

Summary

With the revised IR35 (off-payroll working) rules coming into force in the UK for private sector employers in just a few weeks, are you ready for the new regime? Here are 5 key actions to benchmark your readiness.

Are you definitely in scope for the new IR35 rules?

‘Small’ companies can continue to operate the existing IR35 regime (obligation to assess IR35 status and account for tax/NICs falls on the Personal Service Company (PSC)), rather than apply the new regime which puts the obligation on the fee payer/client.

‘Small’ companies are those that satisfy at least two of the following requirements:

• annual turnover not more than £10.2 million;
• balance sheet not more than £5.1 million; and
• not more than 50 employees.

If you are a subsidiary within a group, your parent company must also satisfy the small company test for the exemption to apply.

Have you mapped all your Personal Service Company (PSC) relationships?

This includes identifying both direct engagements with PSCs as well as those provided through an agency.

Have you set up robust processes to make consistent employment status determinations and appropriately communicate them?

The client (the recipient of the consultancy services) must take reasonable care determining whether the consultant would have been an employee if they were engaged directly. HMRC expects you to make a correct and complete determination, and preserve sufficient records to show how the decision was reached. Blanket assessments of a PSC population as a whole are unlikely to be

Summary

The outbreak of the coronavirus has created real challenges for businesses. From a people perspective, employers need to bear in mind both employment law and health and safety obligations.

Our top 5 HR tips are:

For more information

We continue to speak with clients on a regular basis about preventing bullying in the workplace, and taking steps to foster a safe environment. If you would like to hear more on these topics, please join me for an upcoming CLE webinar, “Workplace Violence Law: Minimizing Claims” on Tuesday, February 25, 1:00pm-2:30pm EST. Click this link for more information: https://www.sp-04.com/r.php?products/tlgehceena

Bryan Cave Leighton Paisner LLP has a team of knowledgeable lawyers and other professionals prepared to help employers review their employee policies. If you or your organization would like more information on this or any other employment issue, please contact an attorney in the Employment and Labor practice group.

Summary

Our February 2020 update outlines key UK employment law developments from January. It includes cases on ethical veganism as a philosophical belief, equal pay and the difficulties in defending such claims, the impact of the drafting of the employment contract on territorial scope, the EHRC’s technical guidance on sexual harassment in the workplace with practical steps employers can take to tackle harassment, and the FCA’s letter on non-financial misconduct for wholesale general insurance firms. We also outline other points of note, including the draft Parental Bereavement Leave Regulations 2020 and changes to the ICO guidance on the timescales for complying with a data subject access request.

Ethical veganism held to be a philosophical belief

An employment tribunal has found that a belief of ethical veganism is a protected philosophical belief under the Equality Act 2010. The Claimant, a qualified zoologist and vegan since 2000, had worked in animal protection most of his working life. He adhered to the philosophy of the Vegan Society and exhausted all reasonable steps to ascertain whether a product or service complied with ethical veganism.

The tribunal noted that “ethical veganism” is not just about choices in diet, but also choices relating to what a person will wear, the personal care products they will use, their hobbies and their jobs. The tribunal also referred to the definition provided by the Vegan Society, “A philosophy and way of life which seeks to exclude, as far as possible and practical, all forms of exploitation and cruelty to