In a recent decision, the Massachusetts Appeals Court ruled that the narrow public policy exception to the general principle that an “at will” employee can be terminated without cause does not apply to an employee fired for submitting a rebuttal to information in the employee’s personnel file.
On January 11, 2021, the NH Department of Health and Human Services updated its New Hampshire COVID-19 Employer Travel, Screening, and Exclusion Guidance for employers and workplaces. The guidance updates some exceptions to the quarantine requirements related to those who have been vaccinated and those who have more recently tested positive for the coronavirus.
Specifically, the guidance on page 3 provides that the following individuals do not need to quarantine either after travel outside of New England or after close contact exposure to someone who tested positive with COVID-19:
- Persons who are 14 days beyond the second dose of their COVID19 vaccine (i.e., 14 days after full vaccination).
- Persons who are within 90 days of a prior SARS-CoV-2 infection that was diagnosed by PCR or antigen testing (if a person had a previous infection that was more than 90 days prior, then they are still subject to quarantine).
The individuals who fall into one of the two above categories, however, must still follow coronavirus protective protocols and procedures (i.e., six feet of social distancing, wearing of face masks, avoiding large gatherings, maintaining good hygiene) and monitor their symptoms. The Isolation and Quarantine Summary Chart have also been updated to include this new quarantine information.
The previous exceptions to quarantine following close contact with someone with COVID-19 or risks related to essential travel remain in place. Again, to be eligible for one of the listed exceptions, the employees must meet all the listed criteria. DHHS also continues to advise employers that these exceptions should not be the standard practice.
The updated guidance makes reference the new and apparently more infectious strains of the virus. It also provides a link to the NH Division of Public Health Services general travel and quarantine guidance for residents and visitors to New Hampshire.
With the vaccines rolling out, and more positive cases being reported, employers should review this new guidance from the DHHS.
On January 6, 2021, the Department of Labor (DOL) announced its final rule seeking to make it easier to classify workers as independent contractors. The distinction is not without difference, as the federal Fair Labor Standards Act (FLSA) and many of its state analogues only protect employees, but do not extend to independent contractors – including many gig economy workers. However, as made clear by the new rule, merely identifying a worker as an “independent contractor” does not mean the employer is off the hook.
Although Congress had the opportunity to extend the requirement that companies with 500 or fewer employees provide paid medical leave and family leave to workers impacted by COVID-19, it did not do so; and those mandates expired on December 31, 2020. The eleventh hour stimulus package did keep in place, through March 31, 2021, the tax credit to employers who voluntarily continue to provide this paid benefit.
The USDOL has issued some guidance to provide “clarity around some of the novel issues that FFCRA’s expiration raises” according to Wage and Hour Administrator Cheryl Stanton. As of December 31, 2020, the DOL added two questions and answers (104 and 105) to its very helpful general FFCRA guidance located at https://www.dol.gov/agencies/whd/pandemic/ffcra-questions.
The COVID-Related Tax Relief Act of 2020 and the Taxpayer Certainty and Disaster Tax Relief Act of 2020, both part of the Consolidated Appropriations Act, 2021, (collectively the “Stimulus Bill”) contain numerous provisions related to employer sponsored benefit plans. Below are some of the key provisions relating to welfare plans, retirement plans and other employer provided benefits.
President Trump last night signed into law a bipartisan bill extending a number of benefits set to expand on December 31, 2020 and expanding other pandemic relief benefits. A summary of the provisions which will impact individual employees and workplaces follows:
- FFCRA Emergency Sick and Family Leave benefits were not extended and will expire as originally scheduled. However, the bill makes an effort to encourage employers to continue providing flexible paid leave benefits by extending the tax credit, obtained through refundable payroll tax credits, for employers through March 31, 2021. The relief bill also extends a tax credit initially provided by the Tax Cuts and Job Acts of 2017 to family and medical leave benefits provided after December 2020 through December of 2025.
- PPP eligibility was expanded to include all nonprofits, including 501(c)(6) organizations, and an additional $284 billion was allocated for disbursement. Companies which have already received funds may be eligible to secure a second loan, and some funds will be set aside for the smallest businesses and community-based lenders. It was confirmed that those who received funds last year and received forgiveness will be allowed to deduct the costs covered by the loans on their federal tax returns.
- Stimulus Checks of up to $600 per person, including adults and children, will issue. The payments decrease in size for individuals who earned more than $75,000 in 2019 and are eliminated for those who earned more than $99,000.
- Unemployment Benefits and Pandemic Unemployment Assistance are extended. An additional $300 per week for each individual collecting will be paid through March 14. Due to the delay in the President’s signing the bill, there will be a gap in payments. PUA is extended for an additional 11 weeks for those such as part-time and gig workers who would not otherwise qualify for unemployment.
- Health and Dependent Care Flexible Spending Account funds with balances may be rolled over from 2020 to 2021 and from 2021 to 2022. Employers may also opt to allow employees to make a 2021 mid-year prospective change in contribution amounts.
- Student Loan Repayment Benefits paid by employers in amounts up to $5,250 annually will remain excludable from income through Dec. 31, 2025. The CARES Act temporarily allowed employers to provide such benefits to employees through Dec. 31, 2020. he $5,250 cap applies to both the new student loan repayment benefit as well as other educational assistance (e.g., tuition, fees and books) provided by the employer under current law.
- Moratorium on Evictions was extended to January 31. The bill also includes $25 billion in rental assistance.
As more information becomes available on individual provisions, addition updates will be provided on our COVID-19 Resource Page and in this blog.
On New Year’s Day, eligible Massachusetts workers will be able to begin receiving paid family and medical leave from the Department of Family and Medical Leave. Here’s what employers need to know now…
Who is eligible for benefits?
- W-2 employees
- Contractors who receive a 1099-MISC form from a business that issues 1099-MISC forms to more than 50% of its workforce
- Former employees who have been unemployed for 26 weeks or fewer
Effective December 26, 2020, Massachusetts businesses will see additional restrictions on occupancy capacity and gathering sizes. These new measures, which were announced by Governor Charlie Baker, are intended to prevent a post-Christmas surge of COVID-19 infections. Massachusetts saw significant increases in infections, hospitalizations, and deaths related to the pandemic following the Thanksgiving holiday, when many people failed to heed recommendations to avoid large gatherings. The Governor hopes that these new restrictions will avoid a further spike in COVID-19 numbers following Christmas.
In the latest episode of McLane Middleton Minutes, Charla Stevens, chair of the firm’s Employment Law Practice Group, interviews Tracie Sponenberg, the Chief People Officer at The Granite Group, on dealing with issues facing employee well-being in the workplace.
Click here to listen to the episode, or find it on your favorite podcast app, including Apple Podcasts, Amazon Music, and Spotify.
Employers have been asking for months whether they may mandate employees to get a COVID-19 vaccine. According to the EEOC’s recent guidance, the short answer is “yes,” but with certain legal limitations. Employers considering a policy on vaccinations should make sure they review this current guidance.
On December 16, 2020, the EEOC updated its Q&A guidance What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws with a section concerning COVID-19 vaccines. Section K of this Q&A covers equal employment opportunity laws such as Title VII (including the Pregnancy Discrimination Act), the Americans with Disabilities Act (ADA) and Rehabilitation Act, and the Genetic Information and Nondiscrimination Act (GINA).
My colleague, Laura McKelligott Kahl, recently wrote on the topic whether employers should mandate the COVID-19 vaccine or flu-vaccine for The Employment Law Business Guide.
The recent EEOC Q&A is summarized below.
Employers must provide a reasonable accommodation to an employee who discloses a sincerely held religious belief, practice, or observance that prevents the employee from receiving the COVID-19 vaccination unless doing so would pose an undue hardship. The EEOC cautions that the protections for religion under Title VII are broad and that employers should “assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.” An employer may request supporting information when there is objective evidence questioning the sincerity of the particular belief, practice, or observance.
Employers must provide a reasonable accommodation to an employee who is unable to get the COVID-19 vaccine because of a disability.
The EEOC cautions employers who administer the vaccine to employees. Pre-vaccination screening questions may elicit information about a disability. In those cases, employers must show that such disability-related inquiries are “job-related and consistent with business necessity” by having a reasonable and objective belief that an employee will pose a “direct threat” to the health or safety of the employee or others if the vaccination is not received. Two exceptions to the disability-related inquiries include (1) if employees are provided the vaccine on a voluntary basis and therefore the prescreening questions are answered on a voluntary basis; or (2) the vaccination is given by a third party that does not contract with the employer. The EEOC reminds employers about the confidentiality of any medical information they may obtain as part of a vaccination program
Administration of the COVID-19 vaccine to an employee by an employer is not considered a medical examination. Because vaccinations are intended to protect from the coronavirus and not seek employee health information, vaccinations are not a medical examination. (Note the guidance relating to pre-screening questions that may elicit medical information.)
Requiring an employee to provide proof of receipt of a COVID-19 vaccination does not constitute a disability-related inquiry under the ADA. The EEOC warns, however, that follow up questions about why an employee did not get vaccinated could disclose disability information. If that is the case, the ADA requires that the questions be “job-related and consistent with business necessity.”
Employers do not violate GINA’s prohibitions on using, acquiring, or disclosing genetic information by administering vaccinations or mandating proof of vaccination. The EEOC warned, however, that employers administering the vaccine or requiring proof of the vaccine may violate GINA if an employee’s genetic information is disclosed in the process, such as family members’ medical histories. An employee’s own health care provider may make such inquiries without violating GINA.
If an employee cannot be vaccinated due to disability or religion and the employee poses a “direct threat” that cannot be reduced or eliminated by a reasonable accommodation (absent undue hardship), employers can exclude an employee from the workplace. A “direct threat” analysis requires an individualized assessment of four factors: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. In these circumstances, the EEOC warns employers to consider other employment laws protecting an employee before any decision is made to terminate. For example, the EEOC explains that even if an employer may exclude an employee from the workplace due to an inability to accommodate a waiver from a vaccine mandate, the employer may need to accommodate the employee by allowing remote working or the employee may be entitled to take a leave under the law or the employer’s policies.
As the COVID-19 vaccines roll-out and are more widely available, employers will be considering whether they will require employees to get a vaccine or instead strongly encourage vaccinations for its workforce.