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Coronavirus: the UK government’s Job Retention Bonus scheme – key points for employers

On 8 July 2020, we reported on the UK government’s Job Retention Bonus scheme.  The Job Retention Bonus Scheme (“JRBS“) is designed to incentivise employers to retain furloughed employees after the CJRS finishes at the end of October 2020. Employers will receive a one-off bonus of £1,000 for each furloughed employee who is still employed on 31 January 2021.

Today, the UK government has issued a policy paper providing more information in relation to the JRBS. The key details for employers to note are as follows:

  • All employers are eligible for the JRBS, including recruitment agencies and umbrella companies.
  • A new employer may be eligible to claim under the JRBS in respect of employees of a previous business who were transferred to the new employer if either TUPE applies, the PAYE business succession rules apply to the change in ownership, or there is a business transfer where TUPE would have applied if the company was not in compulsory liquidation.  To claim under the JRBS under these circumstances, the transferred employees must have been furloughed and successfully claimed for under the CJRS by their new employer. An employer will not be eligible for a bonus under the JRBS in respect of any employee transferred under TUPE or under the business succession rules after 31 October 2020.
  • Employers will be able to claim for employees who meet all of the following criteria:
    • were furloughed and had a CJRS claim submitted for them that meets all relevant eligibility criteria for that

US COVID-19: Remember the FMLA: DOL Issues New Q&A on COVID-related FMLA Issues

With all of the attention being given to COVID-19-related leave under the Families First Coronavirus Response Act (“FFCRA”), we mustn’t forget the (traditional) Family and Medical Leave Act (“FMLA”).  To remind us, the federal Department of Labor (“DOL”) recently issued new FMLA Q&A on COVID-19-related subjects.

COVID-19 Testing:  The DOL clarified that the FMLA’s “reinstatement” requirement does not interfere with an employer’s ability to require all employees to take a COVID-19 test before coming to the office.  (See Q&A #13.)  This is because employees who have taken FMLA leave are still subject to the same actions that would have applied to the employee had the employee not taken FMLA leave.

For BCLP discussions about what the federal Equal Employment Opportunity Commission (“EEOC”) has said about COVID-19 related testing, see this blog post on 4 Takeaways from the EEOC’s New Guidance on Antibody Testing, Older Workers, and Accommodations and this one on EEOC Updates COVID-19 Guidance, Permitting Employers To Administer COVID-19 Tests and Clarifying Accommodation Obligations.

Telemedicine:  The DOL clarified that, until December 31, 2020, and in light of the current pandemic-related demands on health care providers and PPE/supplies, “telemedicine” visits will count as “in-person visits” for FMLA purposes.  (See Q&A #12.)  This decision is significant because one of the common categories of serious health condition under the FMLA – “incapacity plus treatment” – requires certain “in-person” visits to a health care provider.  According to the DOL, a telemedicine visit will constitute an in-person visit as long as

“No Matter Why You’re Angry, You Can’t Say That”: NLRB Finally Reins in Abusive Employee Speech

July 22, 2020

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Yesterday, the National Labor Relations Board freed employers to take disciplinary action against abusive speech by employees targeting managers, supervisors, and co-workers.  In General Motors LLC, the Board swept away years of Obama-era precedents that had permitted employees to engage in profane, abusive, and even racist speech if that speech occurred in the context of exercising rights protected by Section 7 of the National Labor Relations Act – such as challenging disciplinary action in a meeting with company officials, complaining about working conditions in social medial posts, or walking a picket line.  In their place, the Board restored the familiar Wright Line test from 1980, which focuses on whether the employer was lawfully motivated by the employee’s offensive conduct or unlawfully motivated by the employee’s protected activity.

In the Obama-era cases overturned yesterday, the Board had considered abusive conduct in connection with protected activity to be inextricably intertwined with that protected activity and therefore subject to protection under the NLRA.  For example, in cases from 2014-2016, the Board had punished employers for discharging employees who: (1) called the owner of the employer a “f—king mother f—king” and a “f—king crook” while complaining about compensation; (2) attacked a manager on Facebook while encouraging unionization, calling him a “nasty mother f—ker” and saying “f—k his mother and his entire f—king family!!!!”; and (3) shouting racist slurs to black replacement workers from a picket line, including “Hey, did you bring KFC for everyone?” and “I smell fried chicken and watermelon.”

The previous Board

US COVID-19: New FFCRA Q&A – Return to Work Issues

July 21, 2020

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On July 20, as part of a barrage of new guidance relating to the Families First Coronavirus Response Act (“FFCRA”), Family and Medical Leave Act (“FMLA”), and Fair Labor Standards Act (“FLSA”), the federal Department of Labor (“DOL”) issued four new FFCRA Q&As relating to “return to work” issues.

Three of the new Q&As (95-97) explain the interconnection between FFCRA leave and furlough:

  • Hours of FFCRA leave taken prior to furlough count against an employee’s total FFCRA leave entitlement (i.e., the fact that an employee took FFCRA leave and subsequently was furloughed does not mean that the employee’s FFCRA entitlement starts over upon return to work);
  • Hours/weeks on furlough do not count against an employee’s FFCRA entitlement;
  • Post-furlough requests for FFCRA leave should be treated as “new” requests for FFCRA leave (i.e., employees should be required to provide appropriate documentation in support of post-furlough leave requests); and
  • Employers may not make furlough decisions (such as which employees to recall from furlough) based on a desire to avoid providing FFCRA leave.

The remaining new Q&A (94) relates to the “reinstatement” obligation under the FFCRA.  While recognizing that employees who take protected FFCRA leave are, generally, entitled to be restored to their same or equivalent position when returning from leave, the DOL clarifies that employers may take certain steps to reduce potential exposure of employees in the workplace.

Specifically, in regards to an employee who took Paid Sick Leave under the FFCRA to care for a family member who

New FMLA Forms Available From DOL

First, the bad news:  As if HR personnel who are responsible for managing leave requests aren’t already stretched thin due to COVID-19 issues, they now have another item for their to do list:  Become familiar with, and begin using, new Family and Medical Leave Act (“FMLA”) forms issued late last week by the federal Department of Labor (“DOL”).

Now, the good news:  Overall, despite being longer and wordier, the new FMLA forms appear likely to be embraced by employers, employees, and medical providers alike for being more clear, helpful, and user-friendly than prior versions.

The new FMLA forms are available on the DOL’s website.  They include revised versions of the following forms:

  • Combined Eligibility Notice / Notice of Rights and Responsibilities (WH-381);
  • Designation Notice (WH-382);
  • Certification of Health Care Provider (one for employee’s own serious health condition; one for leave relating to care of a covered family member; WH-380 E and WH-380 F);
  • Certification of Military Family Leave (including forms relating to Qualifying Exigency leave and leave relating to a Current Servicemember or Veteran; WH-384 and WH-385/WH-385-V).

One overarching revision is that each form now includes more “explanatory” language relating to FMLA rights and obligations.  For example, the Eligibility Notice includes a description of the eligibility rules and definitions of such key terms as “spouse,” “child” and “parent.”  The Rights and Responsibilities Notice (which, as before, is combined with the Eligibility Notice) includes expanded explanations regarding the substitution of paid

US COVID-19: FFCRA Implications of School Reopening Plans

With school reopening plans currently a hot topic across the country, a natural corollary is:  What do those plans mean for employee requests for leave to care for a child under the Families First Coronavirus Response Act (“FFCRA”)?  Under the FFCRA regulations and previous guidance issued by the Department of Labor (“DOL”), the answer appears to be that if a child’s school is physically open and the child is permitted by the school to attend in person, then any personal choice by the child’s parents to instead have the child participate in remote schooling will not provide a qualifying reason for FFCRA leave.

The FFCRA entitles eligible employees of covered employers to take up to two weeks of Paid Sick Leave, and up to ten additional weeks of Expanded FMLA leave, when the employee is unable to work (including telework) due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19 (“Child Care Leave”).  See https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave; 29 CFR §§ 826.20(a)(v), (b).

Early on during the pandemic, the DOL made clear through its Q&A guidance that Child Care Leave is available when instruction has moved entirely online, due to the physical location of a school being closed:

  • My child’s school or place of care has moved to online instruction or to another model in which children are expected or required to complete assignments at home. Is it “closed”?
  •  

    Yes. If

    Coronavirus: HR impact of the economic statement by the UK Chancellor of the Exchequer

    Following catastrophic falls in economic output during quarter 2, the UK Chancellor of the Exchequer has, today, made a ground-breaking economic statement setting out the UK government’s second phase of its economic response, which includes a significant effort to “protect, support and retain jobs”.Given that largescale unemployment would be a key factor in creating long term scarring for the economy, a key emphasis has been on reducing the number of unemployed as we emerge from the Coronavirus Job Retention Scheme (“CJRS”) at the end of October 2020.Set out below are the key points for employers:

    • Job Retention Bonus. To incentivise employers to bring furloughed employees back to work, the government will pay employers a bonus of £1,000 per employee on condition that following the end of the CJRS, they remain employed by their employer until at least January 2021, earning a minimum of £520 per month.
    • Kickstart Scheme. This scheme will provide new jobs to 16-24 year olds who are on Universal Credit.  The government will pay the national minimum wage of young people employed under this scheme for the first 6 months of their employment, subject to the job being a new one; salary being a national minimum wage or above and the role being for at least 25 hours per week.  There will be no cap on the number of places available under the scheme and participating employers will also receive £1,000 for administrative costs. It is estimated that this £2 billion scheme will see the creation of

    US COVID-19: Georgia Passes Legislation Creating Immunity for COVID-19 Liabilities

    On June 26, 2020, and in the midst of the ongoing coronavirus pandemic, Georgia’s Legislature passed the “Georgia COVID-19 Pandemic Business Safety Act” (the “Act”). The Act provides Georgia businesses with certain defenses and immunities for potential liability from claims related to the spread of COVID-19.

    What Immunities Does The Act Provide?

    Under the Act, no covered entity or individual will “be held liable for damages in an action involving a COVID-19 liability claim . . . unless the claimant proves that the actions . . . showed: gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.”

    The Act defines a “COVID-19 liability claim” as a cause of action for:

  • Transmission, infection, exposure, or potential exposure of COVID-19: (i) at any healthcare facility or on the premises of any entity, individual, or healthcare provider, that results in injury to or death of a claimant; or (ii) caused by actions of any healthcare provider or individual resulting in injury or death of a claimant;
  • Acts or omissions by a healthcare facility or healthcare provider in arranging for or providing healthcare services or medical care to the claimant; or
  • Manufacturing, labeling, donating, or distributing personal protective equipment or sanitizer that is directly related to providing personal protective equipment or sanitizer to claimant and which departs from the normal manufacturing, labeling, donating, or distributing of this equipment by such entity that proximately results in injury to or death of the claimant.
  • To Whom Do These Immunities

    US COVID-19: Managing FFCRA “Child Care” Leave During The Summer

    The advent of summer has brought the reality of “child care” leave under the Families First Coronavirus Response Act (FFCRA) to the forefront of employers’ minds:  Are employees really entitled to up to 12 weeks of leave to care for their children during “summer vacation” from school?  And, if yes, how do we manage this leave?

    The answer to the first question is, “possibly.”  Eligible employees of employers covered by the FFCRA are entitled to up to 12 weeks of leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19: (a) two weeks of Paid Sick Leave; and (b) up to ten additional weeks of Emergency FMLA Leave.

    While this entitlement creates the potential for employees to be on leave all summer (and mostly paid leave, at that:  employers must play employees 2/3rds pay at employee’s normal rate, subject to caps) there are a number of steps employers can take to effectively manage this leave.

    Step 1:  Ensure the Employee has a Qualifying Reason for Leave, and Document the Reason

    The Department of Labor has made it clear that “summer vacation” does not, in itself, create a qualifying reason for FFCRA leave, because school being closed for the summer is not a “reason related to COVID-19.”  See DOL FFCRA Q&A #93.  It is only when the employee’s plans for summer care for the child have fallen through because of a COVID-19 related reason that FFCRA leave could be

    US COVID-19: 4 Takeaways from the EEOC’s New Guidance on Antibody Testing, Older Workers, and Accommodations

    June 23, 2020

    Categories

    With more and more states reopening their economies, employers are facing a barrage of new requirements from state and local governments.  But compliance with local law isn’t the only thing employers must consider as they resume business operations.  Federal anti-discrimination laws, including the Americans with Disabilities Act (“ADA”) and the Age Discrimination in Employment Act (“ADEA”), continue to impact which workers may be required to return to work and what information employers may gather in the process.

    Just as the COVID-19 pandemic evolves, so, too does guidance on these topics from the Equal Employment Opportunity Commission (“EEOC”), the agency charged with enforcing federal anti-discrimination laws.  In its most recent publication, the EEOC offers new insights on antibody testing, older workers, and accommodations.  Below are four key takeaways from the updated guidance for every employer to consider.

  • Employers may not require employees to undergo antibody testing (i.e. serologic testing used to determine whether an employee was previously infected with COVID-19) prior to returning to the workplace. This is in contrast to diagnostic testing (i.e. viral testing used to determine whether an employee is currently infected with COVID-19), which an employer may require.
  • Employees are not entitled to an accommodation under the ADA in order to reduce the risk of exposing a family member who is at higher risk of severe illness from COVID-19 due to an underlying medical condition.
  • If an employer implements health/temperature screenings upon entry, an employee’s request for an alternative method of screening due to a medical
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