Employment, Labor & Benefits

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.

Read the transcript of CompensationStandard.com’s November 2020 webcast titled, “Pay Equity: What Compensation Committees Need to Know” in which Anne L. Bruno was among the experts to discuss pay equity, shareholder expectations, disclosure trends, board oversight, and more.

Please join Mintz’s Employment, Labor & Benefits and Health Law attorneys and noted immunologist Dr. Darryl Carter for a webinar to discuss key takeaways from the EEOC’s recently updated vaccination guidance and other COVID-19–related workplace question.

Happy New Year! While many of us are thrilled to see 2020 in the rear view, 2021 ushers in a huge challenge for Massachusetts employers – the beginning of benefits and Job protections under the Massachusetts Paid Family and Medical Leave law (MAPFML).

The New York City Council has expanded NYC’s Fair Chance Act to further restrict NYC employers from taking adverse actions against applicants or employees based on their criminal history.  The law will go into effect on or about July 28, 2021.  We highlight the changes in the law and action items below.

The District of Columbia Council has passed the Ban On Non-Compete Agreements Amendment Act of 2020 (“the Act”). If it goes into effect (and we are monitoring closely whether it will), it will almost entirely ban non-compete agreements in D.C., prohibiting employers from restricting an employee’s employment by a competitor and giving D.C. the distinction of joining California, North Dakota, and Oklahoma, with one of the broadest statutory bans of non-compete agreements in the United States.

In a recently decided case, Rutledge v. Pharmaceutical Care Management Association, the U.S. Supreme Court held that the Employee Retirement Income Security Act of 1974 (ERISA) does not preempt an Arkansas statute that regulates reimbursement levels paid by Pharmacy Benefit Managers (PBMs) to local pharmacies.

The new COVID-19 stimulus package is now law. As discussed herein, it provides some employers an incentive to extend COVID-19 related FFCRA leave benefits through Q1 2021.

The EEOC has updated its guidance regarding mandatory vaccination in the workplace and has outlined the permissible scope of a mandatory vaccination program. While the guidance has neither the force nor application of a statute or regulation, it provides a compelling structure for a legally compliant mandatory workplace vaccination program.

Mintz Member Jennifer B. Rubin authored an article published by Law360 that examined legal challenges employers face as they contemplate the impact of the coronavirus vaccine on the workforce, and how mandatory vaccination programs may create a workforce of immuno-haves, or those who have received the vaccination, and potentially expose employers to employment and consumer claims.

California employers are now subject to three new COVID-19 related reporting obligations when there is a COVID-19 positive employee or employees in their workplaces, including: reporting to their (1) workers’ compensation carrier, (2) employees and other workers, and (3) local public health authority. We address each obligation below.

Governor Cuomo has announced new guidelines allowing travelers to New York to sidestep the State’s mandatory 14-day quarantine period by obtaining a series of negative COVID-19 diagnostic test results before and after arriving in New York. Previously, the State mandated a 14-day quarantine for travelers from an evolving list of “high-risk” states that had a high rate of COVID-19 positive testing per capita. Now, the new framework applies to travelers from all states in the U.S. except those that are contiguous with New York (Connecticut, Massachusetts, New Jersey, Pennsylvania, and Vermont), which are already exempt from the 14-day quarantine requirement.

The new protocol became effective Wednesday, November 4, 2020.

A quick update to our earlier posts on New York State and New York City’s paid sick leave laws. The agency that enforces NYC’s paid sick and safe time law – the New York City Department of Consumer and Worker Protection – has just released its updated sick and safe time Notice of Employee Rights, which you can access here. We highlight some compliance issues to consider below.

The New York Department of Taxation and Finance has finally provided guidance regarding telecommuting tax liability for nonresident employees working outside of New York because of the COVID-19 pandemic. In short: employees telecommuting because of COVID-19 will generally still be required to pay New York taxes on income they earn.

This week, New York State issued guidance and an FAQ document regarding the State’s new paid sick leave law (“NYPSL”). As a reminder, New York State enacted statewide paid sick leave requirements for employers under Section 196-b of the New York Labor Law and they took effect on September 30, 2020. We provided an overview of the new NYPSL requirements for New York State employers in our previous post.
These permanent paid sick leave requirements (which differ from the COVID-19 quarantine leave measures that New York State enacted earlier this year) require New York employers to provide all employees with sick leave (which varies based upon the employer’s size), and grant employees the ability to use accrued sick time starting January 1, 2021.
The new guidance issued by New York State provides some clarity on select NYPSL topics, but leaves a number of questions unresolved. We provide a summary of key new information from the guidance for employers below: