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The NLRB's Final Joint-Employer Rule Will Soon Be In Effect

April 17, 2020 | Blog | By Morgan G. Tanafon

Recently, the National Labor Relations Board (“NLRB”) issued its final rule for defining joint-employer status under the National Labor Relations Act (“NLRA”). The new rule retreats from the more expansive joint-employment principle in recent years, returning instead to the agency’s prior, more restrictive standard. As this new rule becomes effective on April 27, businesses should become familiar with the new definition and how it affects potential joint-employer status.
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Bringing positive news for employers and a welcome distraction from the COVID-19 crisis, the United States Supreme Court recently held that for claims of racial discrimination under 42 U.S.C. § 1981 (“Section 1981”), plaintiffs are obligated to meet the more stringent “but-for” causation standard at every stage of a lawsuit.
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On April 11, 2020, the Departments of Labor, Health and Human Services, and the Treasury issued a set of FAQs intended to assist stakeholders grappling with the provisions of the FFCRA and the CARES Act governing group health plans, health insurance issuers, and others. This post reports on the FAQ highlights.
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The cities of Los Angeles, San Francisco, and San Jose have each adopted paid sick leave measures to assist workers not covered by the federal Families First Coronavirus Response Act during the COVID-19 crisis.
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The CARES Act is the third significant piece of federal legislation recently enacted in response to the COVID-19 pandemic. This post focuses on the provisions of the CARES Act that affect welfare benefit plans.
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COVID-19: Handling a Positive Diagnosis in the Workforce

April 8, 2020 | Blog | By Morgan G. Tanafon

As the COVID-19 outbreak continues to disrupt normal workplace operations, an increasing number of employers are facing the reality of employees testing positive for the virus – particularly in industries like healthcare, construction, transportation, or retail, where workers cannot necessarily telecommute. Employees may also report to work sick, or become sick at work, and show COVID-19 symptoms. Even though employers may be hoping for the best, it is best to have a plan for the worst. Employers should have clear plans and procedures in place to address confirmed or presumptive COVID-19 cases in the workplace, which will enable employers to take swift, appropriate actions to minimize risk for their employees and operations. The following are guidelines for steps to take in addressing these situations:
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UPDATED: Leave Tracking and Recordkeeping Under Covid-19: Adjusting for the New Normal

April 8, 2020 | Blog | By Jennifer Rubin, Jennifer Budoff

One important question the Families First Coronavirus Response Act (“FFCRA”) and other recent legislative changes raise for employers is how to track and account for employee leaves. While most employers already have systems in place to track employee absences, employers should review their pre-pandemic recordkeeping to account for the “new normal” and new laws. These updates are not only to account for the FFCRA and any other federal or state laws – including the potential application for tax credits – but also, just as importantly, in anticipation of the return to work of the employer’s workforce.
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Following the enactment of COVID-19 quarantine leave benefits in March, New York State has now enacted permanent paid sick leave measures, which will require New York employers to provide various amounts of sick leave to employees starting on January 1, 2021.  This post highlight the new requirements of the law.
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Beyond COVID-19’s devastating impact on public health is its second order effects on the U.S. and world economy. Businesses of all sizes need to trim costs. An obvious place to start is with contributions to 401(k) and other tax-qualified retirement plans. This post reviews the options for cost cutting available to employers under their defined contribution 401(k) and profit sharing plans.
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A timely and robust response to the COVID-19 virus demands the attention and resources of, and action by, federal and state regulators, employers, and individuals alike. The stakes could not be higher. State and local “shelter-in-place” orders have effectively, if not actually, resulted in widespread job losses for at least some indeterminate period of time.
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Summary of CARES Act for Employers

March 27, 2020 | Blog | By David Lagasse, Danielle Bereznay

Congress has now passed the CORONAVIRUS AID, RELIEF AND ECONOMIC SECURITY ACT OR CARES ACT – Federal government’s Phase III response to the health and economic impacts related to the COVID-19 pandemic. President Trump has pledged to sign the Act into law immediately.
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New York State to Provide Paid Sick Leave, Other COVID-19 Protections for Workers

March 27, 2020 | Blog | By Michael Arnold, Corbin Carter

As New York State announced that it had confirmed over 2,300 cases of the COVID-19 coronavirus, New York Governor Andrew Cuomo signed into law new requirements for New York State employees affected by the virus.  The new law was swiftly enacted in light of the urgent public health and economic crises facing the state, and goes into effect immediately.  It mandates that New York employers offer paid sick leave and job protections for workers quarantined as a result of the coronavirus outbreak.
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This morning, Massachusetts Governor Baker issued Covid Order No. 13 which mandates that, starting Tuesday, March 24th at 12 P.M., all non-essential businesses and other organizations “shall close their physical workplaces and facilities (“brick-and-mortar premises”) to workers, customers, and the public,” due to evolving spread of COVID-19 in Massachusetts. This directive also orders that, in furtherance of Massachusetts’s COVID-19 response efforts, all non-essential businesses and organizations “are encouraged to continue operations where they are able to operate through remote means that do not require worker, customers, or the public to enter or appear at the brick-and-mortar premises closed by this Order.”
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Mobilizing Against COVID-19: Emergency Responder and Military Leave

March 22, 2020 | Blog | By Michael Arnold, Morgan G. Tanafon

As the United States continues to develop its response to the COVID-19 pandemic, thousands of members of the National Guard will be activated to help deal with the threat.  Last week, Massachusetts Governor Charlie Baker activated 2,000 of the state’s National Guardspeople to aid the COVID-19 fight. As states assess how to use the National Guard to assist with the current state of emergency, service members will be called on to serve in increasing numbers.
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The Office of Federal Contract Compliance Programs (OFCCP) announced that for the three month period from March 17, 2020 to June 17, 2020, it will provide a temporary exemption to certain federal contracting requirements.  The exemption is related to work under federal construction and service/supply contracts to provide COVID-19 relief. 
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Late Thursday evening California Governor Gavin Newsom issued Executive Order N-33-20 (the “Order”), which directs all California residents to stay home in light of the developing COVID-19 public health crisis. The Order states that except as necessary to continue the operations of businesses in the 16 “Critical Infrastructure” industries, all residents should leave their residence only as necessary for food or medical needs.
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401(k) plans must, by law, limit the circumstances under which plan money can be withdrawn by active employees. However, 401(k) plans can (and most do) allow in-service withdrawals in the event of an employee’s financial hardship. The COVID-19 pandemic is guaranteed to have financial repercussions for many 401(k) participants, and hardship distributions may provide a financial bridge to better times. The post summarizes the hardship distribution rules to help 401(k) plan sponsors prepare for an uptick in requests. It should be noted that the hardship distribution rules changed in 2018 and 2019, so employers are advised to confirm that they are familiar with the most current rules.
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As part of the continuing effort to respond to the COVID-19 pandemic, Governor Newsom has issued an Executive Order temporarily modifying the California WARN Act requirements for employers engaging in mass layoffs.
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New York Governor Andrew Cuomo has issued an expansive executive order, which mandates that, beginning Friday, March 20, 2020, at 8:00 PM, all “non-essential” businesses and non-profits entities in New York State must reduce their in-office workforce by at least 75%, and where possible, utilize telecommuting arrangements.
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