Federal & State Employment Law Updates: April 2020
Fourteen States have updated their employment laws so far this month, alongside nine Federal Law Updates. Our HR Advisors are versed and ready to answer your toughest HR questions to help your company through working remotely, coming back to work and all year long.
Labor Law Updates for April 2020
1
COVID-19, Commercial Drivers, and Hours of Service Temporary Suspension
An emergency declaration regarding suspensions of regulations for permissible drive times for commercial drivers.
On March 13, 2020, the federal Department of Transportation (DOT) released an emergency declaration (No. 2020-002), with an extension on April 8, 2020, in response to national emergency conditions caused by COVID-19 that create an immediate need for transportation of essential supplies, equipment, and persons. It also provides necessary relief from the Federal Motor Carrier Safety Regulations for motor carriers and drivers engaged in the transport of these essential supplies, equipment, and persons.
Under the declaration, the DOT’s hours of service requirements that regulate permissible drive time are temporarily suspended for commercial motor vehicle operations that provide direct assistance in support of emergency relief efforts related to the COVID-19 outbreaks, including transportation to meet immediate needs for:
- Medical supplies and equipment related to the testing, diagnosis, and treatment of COVID-19;
- Supplies and equipment necessary for community safety, sanitation, and prevention of community transmission of COVID-19 such as masks, gloves, hand sanitizer, soap, and disinfectants;
- Food, paper products, and other groceries for emergency restocking of distribution centers or stores;
- Immediate precursor raw materials — such as paper, plastic, or alcohol — that are required and to be used for the manufacture of items in bullets 1, 2, 3, or 5;
- Liquefied gases to be used in refrigeration or cooling systems;
- Equipment, supplies, and persons necessary to establish and manage temporary housing, quarantine, and isolation facilities related to COVID-19;
- Persons designated by federal, state, or local authorities for medical, isolation, or quarantine purposes; and
- Persons necessary to provide other medical or emergency services, the supply of which may be affected by the COVID-19 response.
Direct assistance does not include routine commercial deliveries, including mixed loads with a nominal quantity of qualifying emergency relief added to obtain the benefits of this emergency declaration.
Direct assistance terminates when a driver or commercial motor vehicle is used in interstate commerce to transport cargo or provide services that are not in support of COVID-19 emergency relief efforts or when the motor carrier dispatches a driver or commercial motor vehicle to another location to begin operations in commerce. Upon termination of direct assistance, the motor carrier and driver are subject to the standard DOT requirements, except that a driver may return empty to the motor carrier’s terminal or the driver’s normal work reporting location without complying with Parts 390 through 399.
When a driver is moving from emergency relief efforts to normal operations, a 10-hour break is required when the total time a driver operates conducting emergency relief efforts, or a combination of emergency relief and normal operations, equals 14 hours.
The declaration does not permit motor carriers to require or allow fatigued drivers to operate a commercial motor vehicle. A driver who informs a carrier that they need immediate rest must be given at least 10 consecutive hours before they are required to return to service.
The declaration and its extension took immediate effect and are operative through May 15, 2020.
Read the declaration and its extension.
2
EEOC Issues Updated Covid-19 Technical Assistance Publication
The EEOC publishes FAQ regarding the FEEOL and COVID-19.
On April 17, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) posted an updated technical assistance publication addressing questions arising under the Federal Equal Employment Opportunity Laws related to the COVID-19 pandemic. The publication, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, expands on a previous publication that focused on the ADA and Rehabilitation Act, and adds questions-and-answers to anticipating return to work situations, making reasonable accommodations, and harassment.
3
OSHA to Exercise Enforcement Discretion for Good Faith Efforts During COVID-19
OSHA released interim guidance regarding evaluating employer’s good faith effort to comply with safety and health standards during the coronavirus pandemic.
On April 16, 2020, the Occupational Safety and Health Administration (OSHA) released interim guidance for compliance safety and health officers when evaluating an employer’s good faith efforts to comply with safety and health standards during the coronavirus pandemic. The interim guidance is time-limited and in effect only during the current public health crisis.
According to the guidance, current infection control practices may limit the availability of employees, consultants, or contractors who normally provide OSHA training, auditing, equipment inspections, testing, and other essential safety and industrial hygiene services. Business closures and other restrictions may also preclude employee participation in training if trainers are unavailable, and access to medical testing facilities may be limited or suspended. Therefore, during an inspection, compliance safety and health officers are directed to assess an employer’s efforts to comply with standards that require annual or recurring audits, reviews, training, or assessments. For instance, officers are directed to evaluate whether the employer:
- Explored all options to comply with applicable standards (use of virtual training or remote communication strategies);
- Implemented interim alternative protections, such as engineering or administrative controls; and
- Rescheduled required annual activity as soon as possible.
Employers unable to comply with OSHA requirements because local authorities required their workplace to close should demonstrate a good faith attempt to meet applicable requirements as soon as possible following the workplace’s re-opening. Additionally, OSHA will strongly consider an employer’s good faith compliance attempts when determining whether to cite a violation. However, OSHA may issue a citation if it finds an employer cannot demonstrate any efforts to comply. OSHA is also developing a program to conduct monitoring inspections from a randomized sampling of cases where the agency noted, but did not cite, violations. This is to ensure employers have taken corrective actions once normal activities resume.
The guidance took effect on April 16, 2020 and is in effect until further notice.
Read the interim guidance and more on OSHA’s COVID-19 webpage.
4
OSHA Recordkeeping Requirements and COVID-19
OSHA released interim guidance regarding enforcing its recordkeeping requirements in recording COVID-19 cases.
On April 10, 2020, the Occupational Safety and Health Administration (OSHA) issued interim guidance for enforcing its recordkeeping requirements in recording COVID-19 cases. COVID-19 is a recordable illness, and employers are responsible for recording cases of the disease if the case:
- Is confirmed as a COVID-19 illness;
- Is work-related; and
- Involves one or more of the general recording criteria, such as medical treatment beyond first aid or days away from work.
In areas where there is ongoing community transmission, employers other than those in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting, and law enforcement services), and correctional institutions may have difficulty making determinations about whether workers who contracted COVID-19 did so due to exposures at work. Accordingly, until further notice, OSHA will not enforce its recordkeeping requirements to require these employers to make work-relatedness determinations for COVID-19 cases, except where:
- There is objective evidence that a COVID-19 case may be work-related; and
- The evidence was reasonably available to the employer. Employers of workers in the healthcare industry, emergency response organizations, and correctional institutions must continue to make work-relatedness determinations.
OSHA’s enforcement policy will provide certainty to the regulated community and help employers focus their response efforts on implementing good hygiene practices in their workplaces and otherwise mitigating COVID-19’s effects.
Read the interim guidance and more on OSHA’s COVID-19 webpage.
5
EEOC Issues Updated Covid-19 Technical Assistance Publication
The frist round of FAQ regarding Covid-19 from the EEOC.
On April 9, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) posted an updated and expanded technical assistance publication addressing questions under the federal equal employment opportunity laws related to the COVID-19 pandemic. The publication, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, expands on a previous publication that focused on the ADA and Rehabilitation Act, and adds responses to common inquiries in the following topics:
- Disability related inquiries and medical exams;
- Confidentiality of medical information;
- Hiring and onboarding;
- Reasonable accommodation; and
- Furloughs and layoffs.
The EEOC also provides additional resources related to the pandemic in an employment context.
6
OSHA Reminder that Retaliation for Reporting Unsafe Conditions Prohibited
OSHA’s reminder to employers regarding retaliation against workers reporting unsafe conditions.
On April 8, 2020, the Occupational Safety and Health Administration (OSHA) released a reminder to employers that it is illegal to retaliate against workers when they report unsafe and unhealthful working conditions, including during the coronavirus pandemic. Retaliation may include termination, demotion, denial of overtime or promotion, or reduction in pay or hours.
Under the Occupational Safety and Health Act (OSH Act), employees have the right to safe and healthy workplaces, and any worker who believes that their employer is retaliating against them for reporting unsafe working conditions is instructed to immediately contact OSHA.
Workers may contact OSHA or may file an online whistleblower complaint if they believe their employer has retaliated against them for exercising their rights under the whistleblower protection laws. The OSHA Whistleblower Protection Program webpage provides resources about worker rights, and includes fact sheets on whistleblower protections for employees in various industries along with frequently asked questions.
Read more about OSHA whistleblower protections.
7
DOL Guidance on Federal Pandemic Unemployment Compensation
The DOL’s announcement of Unemployment Insurance Guidance Letter.
On April 4, 2020, the U.S. Department of Labor announced publication of its Unemployment Insurance Guidance Letter 15-20 (UIPL 15-20) providing guidance to states for Federal Pandemic Unemployment Compensation (FPUC). Under FPUC, states will administer an additional $600 weekly payment to certain eligible individuals who are receiving other benefits. This provision is contained in § 2104 of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) enacted on March 27, 2020.
The program allows states to provide an additional $600 per week benefit to individuals who are collecting regular unemployment compensation, including Unemployment Compensation for Federal Employees (UCFE) and Unemployment Compensation for Ex-Servicemembers (UCX), as well as the following unemployment compensation programs:
- Pandemic Emergency Unemployment Compensation (PEUC);
- Pandemic Unemployment Assistance (PUA);
- Extended Benefits (EB);
- ShortTime Compensation (STC);
- Trade Readjustment Allowances (TRA);
- Disaster Unemployment Assistance (DUA); and
- Payments under the Self-Employment Assistance (SEA) program.
FPUC benefit payments are fully federally funded.
The benefit payments under FPUC may begin as soon as the week after the execution of a signed agreement between the Department of Labor and states. The timeline for these payments will vary by state. As states begin providing this payment, eligible individuals will receive retroactive payments back to their date of eligibility or the signing of the state agreement, whichever came later. All states have executed agreements with the department as of March 28, 2020. The CARES Act specifies that FPUC benefit payments will end after payments for the last week of unemployment before July 31, 2020.
The guidance letter also includes guidance about protecting unemployment insurance program integrity, as the provisions in the CARES Act operate in tandem with the fundamental eligibility requirements of the federal-state UI program. The department is working with states receiving funding under the act to provide unemployment insurance benefits to those who are entitled to them.
Read the announcement.
8
Temporary Rule: Paid Leave under the Families First Coronavirus Response Act
New actions and protections under the DOL regarding the FFCRA.
On April 1, 2020, the U.S. Department of Labor announced new action regarding the protections and relief offered by the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act, both part of the Families First Coronavirus Response Act (FFCRA). The FFCRA reimburses private employers with fewer than 500 employees with tax credits for the cost of providing employees with paid leave taken for specified reasons related to COVID-19.
The Department’s Wage and Hour Division (WHD) posted a temporary rule issuing regulations pursuant to this new law, effective April 1, 2020. The regulations implement public health emergency leave under Title I of the Family and Medical Leave Act (FMLA) and emergency paid sick leave to assist working families facing public health emergencies arising out of the COVID-19 global pandemic. The leave provisions are created by a time-limited statutory authority established under the FFCRA and are set to expire on December 31, 2020. The temporary rule is effective from April 1, 2020 through December 31, 2020.
In this temporary rule, the department:
- Issues rules relevant to the administration of the FFCRA’s paid leave requirements.
- Provides direction for administration of the Emergency Paid Sick Leave Act (EPSLA), which requires that certain employers provide up to 80 hours of paid sick leave to employees who need to take leave from work for certain specified reasons related to COVID-19. These reasons may include the following:
- The employee or someone the employee is caring for is subject to a government quarantine order or has been advised by a health care provider to self-quarantine;
- The employee is experiencing COVID-19 symptoms and is seeking medical attention; or,
- The employee is caring for their son or daughter whose school or place of care is closed or whose childcare provider is unavailable for reasons related to COVID-19.
- Provides direction for administration of the Emergency Family and Medical Leave Expansion Act (EFMLEA), which requires that certain employers provide up to 10 weeks of paid, and two weeks unpaid, emergency family and medical leave to eligible employees if the employee is caring for their son or daughter whose school or place of care is closed or whose childcare provider is unavailable for reasons related to COVID-19.
9
COVID-19 and Employee Retention Credit
Information regarding a Refundable tax credit of 50% of up to $10,000 in wages.
On March 31, 2020, the U.S. Treasury Department and the Internal Revenue Service launched the Employee Retention Credit. The refundable tax credit is 50 percent of up to $10,000 in wages paid by an eligible employer whose business has been financially impacted by COVID-19. The credit is available to all employers regardless of size, including tax-exempt organizations, with the following two exceptions:
- State and local governments and their instrumentalities; and
- Small businesses who take small business loans.
Qualifying employers must fall into one of the following categories, which are calculated each calendar quarter:
- The employer’s business is fully or partially suspended by government order due to COVID-19 during the calendar quarter.
- The employer’s gross receipts are below 50 percent of the comparable quarter in 2019. Once the employer’s gross receipts go above 80 percent of a comparable quarter in 2019, they no longer qualify after the end of that quarter.
In calculating the credit, the amount of the credit is 50 percent of qualifying wages paid up to $10,000 in total. Wages paid after March 12, 2020, and before January 1, 2021, are eligible for the credit. Wages considered for the credit are not limited to cash payments, but also include a portion of the cost of employer provided health care.
Qualifying wages are based on the average number of a business’s employees in 2019 as follows:
- If the employer had 100 or fewer employees on average in 2019, the credit is based on wages paid to all employees, regardless if they worked or not. If the employees worked full-time and were paid for full-time work, then the employer still receives the credit.
- If the employer had more than 100 employees on average in 2019, then the credit is allowed only for wages paid to employees who did not work during the calendar quarter.
Employers may be immediately reimbursed for the credit by reducing their required deposits of payroll taxes that have been withheld from their employees’ wages by the amount of the credit. Eligible employers will report their total qualified wages and the related health insurance costs for each quarter on their quarterly employment tax returns, or Form 941, beginning with the second quarter. If the employer’s employment tax deposits are not sufficient to cover the credit, the employer may receive an advance payment from the IRS by submitting Form 7200, Advance Payment of Employer Credits Due to COVID-19. Form 7200 may also be used by eligible employers to request an advance of the Employee Retention Credit.
Read more here.
Individual State Labor Laws
State Specific Labor Law Updates:
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