New guidance narrows employers’ ability to screen employees.

On July 12, 2022, the Equal Employment Opportunity Commission (EEOC) updated its COVID-19 workplace guidance and this article summarizes the key topics that employers should understand.

Return to Work Testing and Documentation

Under the Americans with Disabilities Act (ADA), any medical exam that an employer requires of an employee must be “job-related and consistent with business necessity.” Required COVID testing for employees is considered a “medical exam” and at the onset of the pandemic, the EEOC advised that COVID testing was a business necessity for all employees as an approved method for curbing transmission.

The July 12 guidance narrows what was a broad screening approach and now requires employers to assess whether screening a particular employee is consistent with the prior medical exam standard. The EEOC cautions employers to check with the public health authorities on screening guidelines, which will change depending on the level of virus detected in a particular region. Other factors that implicate “job-related” and “business necessity” include an employee’s vaccine status, the transmissibility of the current variant, contact between others in the workplace, and the impact of a COVID-positive employee on overall operations. In addition, the EEOC has updated its guidance to permit employees to provide an email from a medical provider or time-stamped documentation from a clinic indicating that the employee is at no risk for transmission, given that obtaining a doctor’s note can take a few days.

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With the end of the 2022 second quarter and inflation at a record high in more than four decades, some employers may be forced to take measures to reduce overall operational expenses. Reducing payroll costs is one of the cost-savings measures available to employers in these circumstances.  Unfortunately, however, this often results in the loss of employment for employees by way of a reduction in force, or a “RIF.”  If a company must move forward with such a process, it must be carefully planned and executed in order to minimize the risk of employment law claims.  Below is an overview of factors business owners and human resources professionals should consider when implementing reductions in staff, schedules or compensation.

Continue Reading Employee Reductions in Force, Furloughs and Other Cost-Savings Measures

I recently wrote an article for New Hampshire Business Review on “What To Do if an OSHA Violation Arrives.”

Accidents happen.  It can happen to even the most safety-minded employers.  An employee falls from a ladder and breaks a bone.  A worker is injured on a piece of machinery.  Someone becomes ill after inhaling chemical fumes.  Any of these situations, and countless others, can lead to an OSHA inspector visiting your workplace.  Most often, when such an inspection follows a workplace injury, OSHA will most likely find at least one violation of one or more safety standards.  When that happens, OSHA will issue a Citation and Notification of Penalty.

The Citation will identify the specific violations found, with references to the particular OSHA standards at issue, along with a deadline for abating the violation, and the proposed penalty.

The first thing that employers must do when they receive an OSHA citation is to post a copy of the citation at or near the place where each violation occurred.  The posting requirement is meant to make employees aware that they may be exposed to hazards in the workplace.  OSHA regulations require that the Citation remain posted for three working days or until the violation is corrected, whichever is longer.

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The Internal Revenue Service announced last week that it was piloting a pre-examination retirement plan compliance program beginning this month. This program involves the IRS notifying an employer by letter in advance that the employer’s retirement plan was selected for an upcoming examination.

The letter gives the employer a 90-day window to review its retirement plan’s document and operations to determine if they meet all current tax law requirements. If the employer does not respond within 90 days, the IRS will contact the employer to schedule an examination.

Continue Reading IRS Announces New Retirement Plan Pre-Examination Program

The Massachusetts Wage Act, G.L. c. 149, §148 (the “Wage Act”) requires employers to pay employees discharged from employment all wages owed on the date of discharge.  Employees who resign from their employment must be paid all wages on the next regular payday following the end of their employment.  This requirement to pay all wages owed to an employee upon separation of employment includes an obligation to pay all regular wages, as well as an obligation to pay the employee for any accrued, unused vacation and certain commission payments.  Failure to comply with the Wage Act’s strict time deadlines will result in mandatory awards against the employer of treble damages and attorneys’ fees.  Certain officers and agents having management of the company may also face individual liability for violations.

Continue Reading Massachusetts Employers Beware! Treble Damages Are Available When Employers Are Even One Day Late with Final Wage Payment to Employee

The Massachusetts law providing up to forty hours of paid sick leave to employees for COVID-related absences will expire on March 15, 2022 according to a notice issued by Executive Office for Administration and Finance on Monday.  The law, which was enacted in May 2021, was meant to be effective until April 1, 2022, or the exhaustion of a fund established by the legislature to reimburse employers for the paid leave, whichever occurred first.

Continue Reading Massachusetts Emergency Paid Sick Leave Will End March 15, 2022

Earlier this month, Congress passed a bill that will effectively end mandatory arbitration in workplace sexual assault and harassment cases, providing employees with a choice of proceeding with their claims in either court or via arbitration.  The legislation, Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (“Act”) was passed by a bi-partisan majority in the House and Senate and is expected to be signed into law by President Biden.  This law is significant as there are an estimated 60,000,000 workers in the United States who are subject to arbitration clauses, many of whom do not even realize it.

Continue Reading Congress Ends Mandatory Arbitration of Sexual Assault and Sexual Harassment Claims

On January 25, the Occupational Safety and Health Administration (“OSHA”) formally withdrew its Emergency Temporary Standard (“ETS”) on vaccinations, testing, and face coverings for large employers.  This decision follows the Supreme Court’s January 13 order blocking enforcement of the ETS.  While the Supreme Court’s action technically only stayed enforcement of the ETS pending further proceedings in the lower courts, the Court’s written opinion made clear that a majority of the Justices believe that OSHA had exceeded its Congressionally-granted authority to promulgate regulations to promote workplace safety.  This was widely viewed as a death knell for the ETS.

Continue Reading OSHA Withdraws Vaccine-or-Test Emergency Temporary Standard

On Thursday, the U.S. Supreme Court handed down a pair of anxiously-awaited decisions affecting tens of millions of American workers.

In the first decision, the Court stayed implementation of an Emergency Temporary Standard (“ETS”) issued by OSHA that would have required employers with 100 or more employees to adopt and enforce policies either (a) mandating COVID-19 vaccines for most workers, or (b) requiring unvaccinated workers to wear masks at work and get weekly tests for COVID-19.

Continue Reading Supreme Court Blocks Large-Employer Vaccine Rule and Allows Healthcare Vaccine Rule to Proceed

On January 6, 2022, the Tax Exempt and Government Entities (“TEGE”) division of the Internal Revenue Service released its Fiscal Year 2021 Accomplishments Letter (the “Letter”). Among other responsibilities, TEGE through its Employee Plans division has jurisdiction over tax issues involving retirement plans.  The United States Department of Labor shares jurisdiction and focuses on enforcement of the ERISA, the other primary law impacting benefit plans.  As the name suggests, the Letter described the accomplishments and results of various IRS compliance initiatives during the period October 1, 2020 to September 30, 2021.

Continue Reading IRS 2021 Accomplishments Letter Shows Retirement Plan Audit Activity Continues