COVID-19: FFCRA Rules Changed Again!

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All Employers subject to FFCRA

EFFECTIVE

September 16, 2020

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Last month, a federal district court in New York invalidated portions of the U.S. Department of Labor’s (DOL) rules for the Families First Coronavirus Response Act (FFCRA). On September 11, 2020, the DOL issued an updated temporary rule, that is set to be published on September 16th, to address issues raised by the federal district court.

  • Section 826.20. Paid Leave Entitlements. This section clarifies that employees may not take emergency paid sick leave for any stated qualifying reason where the employer does not have work available for them.

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Tracking Work Hours of Remote Employees

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All Employers subject to FLSA

EFFECTIVE

August 24, 2020

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The U.S. Department of Labor (DOL) recently issued guidance on tracking work hours for remote employees. The DOL acknowledged the standing rule that an employer is required to pay its employees for all hours worked, including work not requested by the employer to be performed, and including work performed at home. If the employer “knows or has reason to believe” that work is being performed, the time must be counted as hours worked.

The DOL also noted that an employer may have actual or constructive knowledge of additional unscheduled hours worked by their employees that they should have known about through reasonable diligence. One way to fulfill an employer’s duty is to provide employees with a “reasonable [time] reporting procedure.” The DOL notes that while employers are not required to engage in “impractical efforts” to discover unreported hours, employers cannot prevent or discourage an employee from accurately reporting time worked.

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COVID-19: Payroll Tax Deferral, To Withhold or Not to Withhold – That is the Question!

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All Employers

EFFECTIVE

September 1, 2020

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On August 8, 2020, the President issued an Executive Order that permitted the delay of withholding and reporting the employee share of social security payroll taxes. On August 31, 2020, the IRS issued corresponding guidance.

Specifically, employers may delay withholding social security payroll taxes for pay dates occurring between September 1, 2020 and December 31, 2020. Tax deferral is only for employees whose wages or compensation paid for a bi-weekly pay period is less than $4,000 (excluding certain pre-tax wages, like those subject to a Section 125 plan), or the equivalent amount with respect to other pay periods. Employees may qualify for the deferral on a pay period-by-pay period basis. The amounts that are not withheld during this period must be paid to the employee. The maximum amount an employee may receive as a result of the tax deferral is $248 for a bi-weekly payroll, or 6.2% of qualifying wages.

 

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Form I-9 Updates: Continued Flexibility in Remote Form I-9 Verification, Acceptable Employment Authorization Documents

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All Employers

EFFECTIVE

Varies; See Below

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Form I-9 Flexibility in Completion Requirements.  In order to accommodate social distancing and remote work during the pandemic, the U.S. Immigration and Customs Enforcement (ICE) announced special rules permitting employers to remotely inspect employee work authorization documents visually, with physical inspection delayed to a later date.  This accommodation was set to expire on May 19, but was extended in May, June, and July.  ICE has now announced that accommodation will be extended another 30 days from its last expiry date of August 18, 2020.

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COVID-19: FFCRA Update on Leave for School Unavailability

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All Employers subject to FFCRA

EFFECTIVE

August 27, 2020

QUESTIONS?

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The U.S. Department of Labor (DOL) recently updated its FAQ on the Families First Coronavirus Response Act (FFCRA) by adding questions 98-100. Specifically, the DOL addresses employees taking FFCRA leave to care for children whose school is unavailable or closed for reasons related to COVID-19. As children are returning to school in various forms – remotely, partially in-person, or completely in-person, the DOL has sought to clarify when employees may take advantage of FFCRA leave.

 

First, where schools are closed for in-person instruction and are only offering remote learning, qualifying employees may be eligible to take FFCRA leave. However, where in-person instruction is offered and an employee elects to have their child receive remote instruction, the employee is not eligible for FFCRA leave.

Second, where schools are offering hybrid instruction models with some days of required remote instruction and some days of required in-person instruction, the days that are required to be remote would qualify eligible employees for FFCRA leave. However, employees may not take FFCRA leave on the days where in-person instruction is required. Similarly, where an employee elects to have hybrid instruction rather than in-person instruction, the employee is not eligible for FFCRA leave.

Employers should take care to review education requirements in their areas of operation. Failure to permit FFCRA leave where applicable is deemed a wage and hour violation.

Action Items

  1. Review the DOL’s FAQ here.
  2. Update leave processes accordingly and have managers trained on requirements.
  3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2020 ManagEase

Employers Can Prohibit Employees from Linking to Employer Websites from Personal Blogs

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All Employers

EFFECTIVE

July 29, 2020

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The National Labor Relations Board (NLRB) stated in a recent case that employer policies preventing employees from linking to employer websites from personal blogs was under lawful Boeing Category 1(a), which refers to a set of standards used to determine if employer policies interfere with employees’ NLRA-protected rights.

Boeing Category 1(a), arising from a 2017 case involving The Boeing Company, includes rules the NLRB deems permissible for employers to maintain because (1) when reasonably interpreted, the rule does not prohibit or interfere with exercising NLRA-protected rights, or (2) the potential adverse impact on protected rights is outweighed by justifications associated with the rule.

In Shamrock Foods Co., the NLRB stated that a policy discouraging employees from linking to an employer’s website from a personal blog fell into this category.  The NLRB reasoned that the policy was intended to protect the company’s brand identity, integrity, and reputation, and to minimize the impression that the employee is endorsed by or speaking on behalf of the employer, and not to restrict employees’ NLRA-protected rights.

Action Items

  1. Have policies and handbooks reviewed consistent with the ruling.
  2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2020 ManagEase

Georgia: Employers Must Provide Paid Lactation Breaks

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All Employers with GA Employees

EFFECTIVE

August 11, 2020

QUESTIONS?

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A new piece of legislation, Georgia House Bill 1090, requires employers to provide paid lactation breaks and a private space to express breast milk, effective immediately.  Previously, employers had the option to provide unpaid break time for nursing employees to express breast milk, and were not required to provide any particular location for the employee’s use during lactation breaks.

With the new regulations, employers are now required to provide reasonable break time for employees to pump at the worksite during work hours. Lactation breaks must be paid at the employee’s regular rate of pay. Employers are further prohibited from requiring use of paid leave or reduction of salary to offset time taken off to express breast milk.

Additionally, employers are required to provide a private location other than a restroom for employees to express breast milk.

Action Items

  1. Review the text of the bill here.
  2. Train supervisory staff on handling requests for lactation breaks.
  3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2020 ManagEase

Louisiana: Updates to Employee Noncompete Agreements

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All Employers with LA Employees

EFFECTIVE

August 1, 2020

QUESTIONS?

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(888) 378-2456

Noncompete agreements are prohibited in Louisiana unless certain exceptions are met. For employers, an agreement that restricts employees “from carrying on or engaging in a business similar to that of the employer” and/or “from soliciting customers of the employer” is permitted, but only: (1) within an expressly identified territory consisting of specified parish(es), municipalit(ies), or their parts, provided that the employer engages in a like business there, and (2) not exceeding a period of two years from termination of employment.

Additionally, a corporation, partnership, or limited liability company may enter into agreements with their shareholders, partners, and LLC members to restrict them from taking equity stakes in a competing business (as shareholders, partners, or members) and/or merely becoming employees with the competing business.

Action Items

  1. Have noncompete agreements reviewed by legal counsel for compliance.
  2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2020 ManagEase

Massachusetts: PFML Rules are Final!

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All Employers with MA Employees

EFFECTIVE

July 24, 2020

QUESTIONS?

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(888) 378-2456

Employers must begin providing Paid Family and Medical Leave (PFML) to employees on January 1, 2021. The Massachusetts Department of Family and Medical Leave (DFML) recently released the final regulations for PFML with some changes.

There were numerous changes to rules surrounding employers opting for private plans. Key changes to note include:

  • Private plans must cover the entire workforce, not just certain classes of workers.
  • Private plans must also provide employees with an internal appeals process, with specific timing and procedural requirements, through the private plan administrator before the employee can seek an appeal with the DFML.
  • Employers with private plans must provide a notice of rights under both the private plan and the PFML as part of any determination.
  • Private plans must use an employee’s wages earned at the time of applying for benefits to determine the weekly benefit amount.

The final rules also discuss requirements when transitioning between private and state-sponsored plans. An employer that does not renew a private plan must continue to provide paid leave benefits to covered individuals under the same terms and conditions of the private plan for the entire duration of the leave if the claim was initiated under the private plan prior to its termination. In the case of intermittent leave, the private plan must maintain coverage until the end of the employee’s benefit year.

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Nevada: New COVID-19 Related Worker Safety Requirements for Hospitality Employers

APPLIES TO

Public Accommodations Facilities in
Nevada Counties of 100,000+ People

EFFECTIVE

Varies; See Below

QUESTIONS?

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As of August 11, 2020, SB 4 imposes new COVID-19 related worker safety requirements for certain employers, including limited-time protocols for mitigating transmission, cleaning facilities, implementing a response plan, mandated testing in specific circumstances, and paid time off. The director of the Department of Health and Human Services adopted corresponding regulations on August 31, 2020.

Eligibility. The new rules come with moderately complex eligibility provisions. First, the new protocols apply to public accommodations facilities, defined as hotel and casinos, resorts, hotels, motels, hostels, bed and breakfast facilities or other facility offering rooms or areas to the public for financial consideration.  Next, SB 4 applies only to counties with a population of 100,000 or more individuals, such as Clark and Washoe counties.  Finally, the director’s regulations apply (1) during any period of public health emergency due to SARS-CoV-2 as declared by the Governor, (2) any day that the positive rate of COVID-19 testing for any county exceeds 5% in a 14-day rolling period within the previous 90 days, or (3) any day the number of new cases in the county exceeds 100 per 100,000 residents in the same time periods.

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