As businesses attempt to navigate the post-COVID-19 landscape, one issue of concern is the possibility of claims for alleged COVID-19 exposure being brought by both customers and employees. These concerns have been complicated by the often conflicting guidance or requirements being placed on businesses from local, state, and federal governments or agencies. While there is ongoing discussion at the federal level of legislation to provide some liability protections for businesses in certain circumstances, several states are stepping into the void and enacting legislation of their own. Louisiana has now followed Oklahoma, North Carolina, and several other states in enacting legislation that grants liability protections for businesses from these type of claims.

Continue Reading New Louisiana Law Grants COVID-19 Liability Protection to Businesses

On May 19, OSHA released updated enforcement guidance for inspections related to COVID-19 complaints, referrals and severe illness reports.

In response to the reopening of many parts of the country, OSHA plans to operate within the following framework:

  • In areas where community spread of COVID-19 has significantly decreased, OSHA will return to its regular

On May 19, the Occupational Safety and Health Administration (OSHA) revised its policy for when employers have to record COVID-19 cases in their injury and illness logs.

Under the revised policy, employers who are otherwise required to keep OSHA logs must make a determination as to whether workers’ COVID-19 cases are job-related. Previously, OSHA took the position that only healthcare employers, corrections facilities, and emergency-response providers were required to make that determination.

Continue Reading OSHA Issues Revised Enforcement Guidance for Recording Cases of COVID-19

Recognizing the profound impact COVID-19 is having on the way businesses operate, the Department of Homeland Security (DHS) has implemented temporary employment verification procedures to address some of these issues.

Form I-9 Inspection of Documents

Now and in the near future, employers taking physical proximity precautions due to COVID-19 will not be required to review an employee’s identity and employment authorization documents in person. Section 2, however, should still be completed within three business days of hire. Here’s how it will work:

  • The employer may inspect the Section 2 documents remotely (i.e., via video link, fax, or email, etc.). As always, we recommend (and it may be required due to participation in E-Verify) retaining copies of the documents presented.
  • Once physical inspection takes place, employers will enter “COVID-19” as the reason for the physical inspection delay in the field titled “Additional Information” in Section 2.
  • Once normal operations resume, employees who were hired using remote verification must report to the employer within three business days for in-person verification of identity and employment eligibility documentation.
  • Once the original documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 Additional Information field or to Section 3 (if documents presented remotely have since expired).
  • These provisions may be implemented by employers through May 19 (which could be extended) or within three business days after the termination of the National Emergency, whichever comes first.
  • Employers who utilize these procedures must provide written documentation of their remote onboarding and telework policy for each employee.

Continue Reading COVID-19 Brings Temporary Changes to I-9 and E-Verify Procedures

In a September 2005 release soon after Hurricane Katrina, the Internal Revenue Service (IRS) reported that for the first time ever, the IRS and the departments of Treasury and Labor would provide broad-based relief to retirement plan participants affected by a major disaster. Broad-based relief has been provided since to residents of specific disaster areas, but the 2020 coronavirus pandemic, known as COVID-19, is a disaster that has affected all communities in the United States. On March 27, 2020, Congress passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act, which was quickly signed by President Trump.

Some employers and plan recordkeepers have been overwhelmed with calls from participants requesting plan loans or hardship distributions. Some plans do not allow loans or hardship distributions. Other plans allow hardship distributions, but existing rules may pose a problem for many participants.

Continue Reading Sample Employee Notice for Coronavirus-Related Retirement Distributions

The Families First Coronavirus Relief Act (the Act) was passed on March 18, 2020 and imposes paid leave obligations on most employers throughout the country. The bill contains special and often overlooked provisions affecting public agencies. Those provisions could provide a “trap” for public agencies that do not carefully review the bill.

Definition of “public agency.” A “public agency” is defined broadly to include the government of the United States; the government of a state or political subdivision of a state; or an agency of the United States, a state, or a political subdivision of a state, or any interstate governmental agency.

Application of employee threshold. For purposes of the law’s paid leave obligations, a covered employer in the private sector includes any employer with fewer than 500 employees. This threshold does not apply to public agency employers. Public employers with only one employee are covered by the bill’s paid leave provisions, meaning large public employers with more than 500 employees are covered by the paid leave provisions.

Continue Reading Families First Bill Contains Special Provisions Affecting Public Agencies

On March 18, 2020, President Donald Trump signed the Families First Coronavirus Response Act (FFCRA) in response to the spread of the novel coronavirus and the illness it causes, COVID-19. The Act goes into effect on April 1, 2020 and remains in effect through December 31, 2020.

As discussed in our prior client alerts “Recent Clarifications to Families First Coronavirus Relief Act” and “Senate Passes Coronavirus Bill Requiring Paid Leave,” the Act provides for up to 80 hours (two weeks) of Emergency Paid Sick Leave if an employee is unable to work or telework for one of six specified reasons. Additionally, the Act provides up to 12 weeks of Emergency Paid FMLA Leave for one qualifying reason — that the employee is unable to work or telework due to the need to care for the employee’s minor child because the child’s school or place of care has been closed due to this public health emergency. The first two weeks of Emergency Paid FMLA Leave is unpaid, though the Emergency Paid Sick Leave will be applied to cover the first two weeks.

There are a myriad of questions and issues for employers to work through in applying these new provisions. Our team has been working non-stop to interpret these provisions, review new guidance, and provide answers. In addition, the Department of Labor (DOL) has established the COVID-19 and the American Workplace webpage, which includes a variety of fact sheets, Question-and-Answer pages, and workplace posters available to employers detailing these provisions.

Continue Reading Who Is a “Health Care Provider” Exempt From Paid Leave Requirements Under the Families First Coronavirus Response Act?

By now, you’re likely aware of the Families First Coronavirus Response Act (FFCRA). This law, which will take effect on April 1, 2020, requires certain employers to provide employees with paid sick leave under the Emergency Paid Sick Leave Act (EPSL) or expanded paid family and medical leave under the Emergency Family and Medical Leave Expansion Act (expanded FMLA) for several reasons related to COVID-19. As a refresher, the FFCRA generally provides that employees of covered employers are eligible for one of the following:

  • Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is (1) unable to work or telework because the employee is quarantined (due to a federal, state, or local government order or the advice of a health care provider) and/or (2) experiencing COVID-19 symptoms and seeking a medical diagnosis; or
  • Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay where the employee is (1) unable to work or telework while caring for an individual subject to quarantine (due to a federal, state, or local government order or the advice of a health care provider), (2) unable to work or telework because of a need to care for a child (either a minor child under 18 years of age or an adult child who has a mental or physical disability and is incapable of self-care because of that disability) whose school or child care provider is closed for reasons related to COVID-19, and/or (3) experiencing a substantially similar condition as specified by the secretary of health and human services, in consultation with the secretaries of the treasury and labor; and
  • Up to an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay where an employee who has been employed for at least 30 calendar days is unable to work or telework due to a need to care for a child whose school or child care provider is closed for reasons related to COVID-19.

Private employers with fewer than 500 employees and certain public employers are covered. Small businesses with fewer than 50 employees may qualify for exemption, which is discussed below.

Continue Reading With Effective Date of the FFCRA Looming, DOL Offers Answers to Pressing Paid Leave Questions

The Department of Labor (DOL) recently clarified numerous issues under the Families First Coronavirus Relief Act (FFCRA) in three notices released on March 24, 2020. We previously provided a summary of the law’s paid leave provisions in a client update on March 19, 2020. Some of the clarifications made in the recent guidance include the following:

The paid leave provisions go into effect on Wednesday, April 1, 2020.

The law does not apply retroactively, which means that employers who provided paid leave prior to April 1, 2020, cannot count leave payments as having been made under the FFCRA, and also cannot claim a tax credit for such amounts.

All employees (full-time and part-time) within the United States or any of its territories are counted in determining the 500-employee threshold for whether an employer must comply with the paid leave obligations. Employees on leave, temporary employees, and leased employees from a temporary employment agency are also counted. The threshold is determined as of the time an employee’s leave is to be taken.

Continue Reading Recent Clarifications to Families First Coronavirus Relief Act