Employment, Labor & Benefits

It’s been a busy month (year?) for New York employers – one that has brought several important updates with respect to employers’ reopening plans. On the heels of the State’s May 19th adoption of the recent CDC guidance outlining increased privileges for fully vaccinated individuals, New York State updated its NY Forward COVID-19 reopening guidance on June 8, 2021, including its guidance geared toward office environments. As a reminder, New York businesses opting to reopen during the COVID-19 pandemic must do so consistent with the State’s industry-specific reopening guidelines, found here; affirm their compliance with same prior to reestablishing in-person operations; and implement a written safety plan governing its workplace safety protocols.

Bonuses and their impact on an employee’s “regular rate of pay” have long been a proverbial thorn in the side of California employers.  The nondiscretionary nature of most bonuses (even those bonuses employers attempt to characterize as “discretionary”) makes them part of a non-exempt employee’s regular rate of pay for purposes of determining the appropriate overtime rate. Cal. Labor Code § 226 requires all hourly rates of pay to be reflected in employees’ pay statements.  The ambiguity surrounding the extent to which this “hourly rate of pay” includes bonuses in all of their various forms and the related overtime adjustments can sometimes leave employers feeling uncertain as to how to ensure compliant paystubs when nondiscretionary bonuses are paid to non-exempt employees. A recent decision from the Ninth Circuit Court of Appeals offered some clarity. 

Cal/OSHA has relaxed some of its COVID-19 Prevention Emergency Temporary Standards (ETS) for fully vaccinated individuals to better align with the California’s June 15, 2021 goal to end most mask and physical distancing requirements. But the proposed revisions stop short of fully adopting the May 13, 2021 CDC guidance for fully vaccinated individuals and do not (yet) provide guidance on several important issues, including the enforcement of documentation for vaccine verification and how employers can demonstrate that physical distancing is not feasible.

Massachusetts Governor Charlie Baker recently signed legislation requiring employers to provide COVID-19 emergency paid sick leave (“COVID-19 EPSL”) to employees who are unable to work for COVID-19-related reasons. In this post, we summarize and answer some frequently asked questions.

According to Bloomberg Law, class actions challenging 401(k) plan fees are increasing at a record pace. The underlying claims in these class action suits fall into predictable categories that are all too familiar: excessive fees, poor fund choices, poor plan design, fiduciary neglect, and prohibited transactions. Khan v. PTC, Inc. fits the pattern. The plaintiffs claim that the fiduciaries of the PTC, Inc. 401(k) plan:

Environmental, social, and governance (“ESG”) investing has experienced quite the regulatory roller coaster in recent years.

The New York State Legislature recently passed the Health and Essential Rights Act (the “HERO Act”), which has been delivered to Governor Cuomo for his signature. The legislation seeks to address continued COVID-19 safety concerns in the workplace and is designed to codify, supplement, and replace numerous executive actions that have been issued throughout the pandemic. The HERO Act would also pass into law significant new health and safety obligations for New York employers, including the formation of joint labor-management workplace safety committees to help ensure worker safety. Employers should prepare now to come into compliance with the new law, which we summarize below.

The CDC’s recent guidance suggesting that most fully vaccinated individuals may discontinue certain safety measures, such as masking and social distancing, has created significant confusion for employers navigating conflicting and ever-changing state and local COVID-19 workplace laws, regulations and guidance. While the most recent CDC guidance endorses resuming activities (indoors and out) without masks for most fully vaccinated individuals, the guidance around vaccination verification and disparate treatment between the vaccinated and unvaccinated is still lacking. Employers are now facing these sensitive but critically important return to office issues without the benefit of critical guidance from Federal, state and local regulators. We provide some guidance below regarding vaccine verification and some considerations for employers thinking about instituting vaccine policies.

On May 13, 2021, the Centers for Disease Control and Prevention (the “CDC”) published guidance indicating that fully vaccinated individuals do not need to wear a mask or physically distance in certain indoor and outdoor environments, except where otherwise required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance. The guidance does not apply to healthcare settings and certain other environments.

Many employees relocated during the Covid-19 pandemic and some are expected to continue working remotely, creating complexities for employers because of state and local wage-and-hour laws and other regulations, says Mintz employment partner Jen Rubin. She explains how organizations can get a handle on where their employees are working and why they need to do so.

New York’s off duty conduct law will now explicitly apply to an employee’s off-duty use of cannabis. The change in law came as a result of the recent passage of “The Marijuana Regulation and Taxation Act,” which generally legalized the sale and use of cannabis for individuals 21 and over, and presents real compliance challenges for employers, which we discuss further below.

The Department of Labor has issued model notices regarding COBRA premium assistance (a/k/a COBRA subsidies). As we wrote about here, as part of the American Rescue Plan Act of 2021, Congress sought to enable qualifying individuals – known under the law as “Assistance Eligible Individuals” – to continue their healthcare coverage by subsidizing their COBRA premium payments for the period between April 1 and September 30, 2021. We discuss these notice requirements and related issues below.

The recently enacted American Rescue Plan Act of 2021 (the “Act”) creates a federal subsidy covering 100% of COBRA premiums for certain employees and other qualified beneficiaries. The subsidy is payable during the six-month period commencing April 1, 2021 and ending September 30, 2021. Individuals who previously experienced an involuntary termination, or reduction in hours, but who did not elect COBRA, are allowed to enroll. Similarly, individuals who dropped COBRA coverage, but who are still within their original COBRA coverage period, are allowed to re-enroll. Employers are reimbursed for the cost of the subsidy through a payroll tax credit.

As we enter the second year of the COVID-19 pandemic, New York employers must now grapple with another new paid leave requirement from New York State.  A new law signed by Governor Cuomo on March 12, 2021 amends New York’s Labor Law and entitles employees up to four hours of paid leave per COVID-19 vaccine injection.  The law is effective immediately, and the law’s leave entitlement is set to expire on December 31, 2022. We note key provisions of the new law below.

On February 26, 2021, the Department of Labor’s Employee Benefits Security Administration (EBSA) issued Notice 2021-01 (the “Notice”). The Notice was issued jointly with the Department of the Treasury, the Internal Revenue Service and the Department of Health and Human Services (the “Departments”). Entitled “Guidance on Continuation of Relief for Employee Benefit Plans and Plan Participants and Beneficiaries Due to the COVID-19 (Novel Coronavirus) Outbreak,” the Notice provides much needed guidance to group health plan sponsors on (among other things) when COBRA notice and election periods, which had been previously extended [in May 2020], will come to an end. This guidance was necessary because earlier regulatory relief extending COBRA notice and election periods was about to expire as a result of a statutory deadline. This post explains the impact of the Notice on sponsors of group health plans.

As COVID-19 vaccines become more available, employment-based programs requiring or incentivizing employee vaccination will become more commonplace. In a previous post, we covered recent employer guidance from the CDC, with a particular focus on mandatory workplace testing programs. This post examines how an employer might design a voluntary workplace vaccination program using incentives to encourage participation, and how to avoid potential pitfalls in doing so.

In concept, the FMLA is simple. In practice, however, administering FMLA leave, particularly on an intermittent basis can quickly become complicated, and many employers struggle trying to track and manage intermittent leaves. This post addresses some of the intermittent leave-related issues employers may face and offers best practices for ensuring compliance with the law.

The New York State’s Department of Labor recently issued new Quarantine Leave guidance for 2021 – guidance that is certainly controversial in that it seemingly goes beyond the statutory text of the NY COVID-19 Quarantine Leave Law to create expansive new employer mandates. We previously wrote about New York’s COVID-19 leave requirements here and here. While the new guidance seems ripe for legal challenge, it nonetheless reflects the new position of the NYSDOL. Employers should review this new guidance – keeping in mind its informal, non-binding nature – as the pandemic continues to affect leave decision-making.

The CDC has issued new guidance focused on ensuring employees’ informed consent for COVID-19 testing in the workplace. This builds on earlier guidance the CDC issued regarding workplace testing programs last fall. Because the CDC notes that employers should not conduct testing without an employee’s informed consent, employers should be prepared to answer employee questions and concerns by utilizing the recommend framework discussed below.

In this post we begin an in-depth examination of these provisions starting with the Consolidated Appropriations Act’s effect on flexible spending arrangements, which provides employers with an expanded set of options to allow mid-year election changes.