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Employee Issues for Businesses

September 14, 2020

We have created this page in order to provide instant access to the latest news and updates in this area. Please continue also to visit our Coronavirus Resource Center and CARES Act page for news relating to additional topics that may be of interest.

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  • USDOL Revamps COVID-19 Leave Rule After Court Loss September 14, 2020

    On Friday, September 11, 2020, the U.S. Department of Labor (“USDOL”) issued new regulations for the Emergency Paid Sick Leave Act (“EPSLA”) and Emergency Family and Medical Leave Expansion Act (“EFMLEA”). Click on the title to read the full alert.

  • OSHA Whistleblower Complaints Sharply on the Rise Over COVID-19 Safety Concerns August 14, 2020
    The Occupational Safety and Health Administration (OSHA) doesn’t just handle safety-related complaints by enforcing substantive safety regulations governing workplace conditions. The Occupational Safety and Health Act also includes whistleblower protection and anti-retaliation protection for employees who make safety-related complaints to their employers or OSHA. Click on the title to read the full alert.
  • Federal District Court Strikes Down Portions of U.S. Department of Labor’s FFCRA Regulations August 6, 2020
    On August 3, 2020, the United Stated District for the Southern District of New York issued a decision vacating several important aspects of the United State Department of Labor’s (“DOL”) regulations implementing the paid leave provisions of the Families First Coronavirus Response Act (“FFCRA”). State of New York v. U.S. Department of Labor, No. 1:20-cv-03020 (S.D.N.Y. Aug. 3, 2020). Click on the title to read the full alert.
  • FAQs Provide Additional Coronavirus Guidance for Health Plans July 20, 2020
    The departments of Labor, Health and Human Services, and Treasury jointly prepared a new set of frequently asked questions (“FAQs”) regarding implementation of the Families First Coronavirus Response Act (“FFCRA”), the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), and other related health coverage issues. Click on the title to read the full alert.
  • CARES Act: IRS Issues New Retirement Plan Guidance for the 2020 Waiver of Minimum Required Distributions July 16, 2020

    On March 27, 2020, the President signed into law the Coronavirus, Aid, Relief and Economic Security (CARES) Act. We previously reported on the CARES Act provisions relevant to employer-sponsored retirement plans that delivered certain relief in connection with the Coronavirus pandemic (see our March 30, 2020 Hodgson Russ Employee Benefits Alert here.) Click on the title to read the full alert.

  • Employment Related Pandemic Legal Actions on the Rise July 14, 2020

    Employment related legal actions (including federal and state lawsuits and administrative claims) are on the rise during the coronavirus pandemic. These cases arise in all business sectors, from colleges and universities to medical offices to heavy manufacturing. These can include (but are certainly not limited to) claims related to discrimination/harassment, wage and hour, refusal to pay sick and family leave benefits, and the WARN Act, and are being brought on both an individual and a class basis.

  • CARES Act: IRS Issues New Retirement Plan Guidance for Coronavirus-Related Distributions and Plan Loan Relief July 9, 2020
    On March 27, 2020, the President signed into law the Coronavirus, Aid, Relief and Economic Security (CARES) Act. We previously reported on the CARES Act provisions relevant to employer-sponsored retirement plans that delivered certain relief in connection with the Coronavirus pandemic (see our March 30, 2020 Hodgson Russ Employee Benefits Alert here.) Recently released IRS Notice 2020-50, which focuses on the relief under CARES Act Section 2202, addresses coronavirus-related distributions (CRDs), the temporary increase to the allowable plan loan amount, and the delayed due date of plan loan repayments payable during the period beginning on March 27, 2020 and ending on December 31, 2020. Click on the title to read the full alert.
  • New York Issues Guidance for Phase 4 of the Governor’s Reopening Plan June 29, 2020
    Last week, New York State issued guidance applicable to Phase 4 industries in Governor Cuomo’s NY Forward reopening plan. Western New York is expected to enter Phase 4 on Tuesday, June 30. It is not yet clear when the Capital Region, Mid-Hudson or Long Island will enter Phase 4. New York City remains in Phase 2.  Click on the title to read the full alert.
  • Governor Cuomo Issues Executive Order Mandating Post-Travel Quarantine June 29, 2020
    On June 24, 2020, Governor Cuomo signed an Executive Order that requires a 14-day post-travel quarantine for anyone entering New York State from certain states experiencing high rates of COVID-19. Click on the title to read the full alert.
  • OSHA Issues Confusing Return-To-Work Guidance For “Relaxing” COVID-19 Restrictions June 26, 2020

    On June 18, the Occupational Safety and Health Administration (OSHA) released a twenty-four page informational guidance booklet entitled “Guidance on Returning to Work.” The document is intended to assist employers and workers in safely returning to work following COVID-19 exposures and to provide guidance to “non-essential” employers who are reopening their businesses after perhaps weeks or months of being shuttered due to State-initiated COVID-19 stay-at-home orders and proclamations. Click on the title to read the full alert.

  • NYS Employers Must Revise Their Safety Plans June 23, 2020
    As the COVID-19 pandemic continues to evolve, so do the requirements that businesses must meet to reopen and remain open.  Employers that were permitted to reopen in Phases One and Two, and those that were permitted to remain open as “essential businesses,” likely drafted and implemented safety plans consistent with then-applicable guidance from New York State. Click on the title to read the full alert.
  • EEOC Updates Guidance on Recalling Employees June 18, 2020
    As the economy reopens, employers are facing difficult questions concerning how to recall employees to the workplace safely and how to handle concerns from employees who may be particularly vulnerable to COVID-19. On June 17, 2020, the Equal Employment Opportunity Commission (“EEOC”) issued return to work guidance concerning the use of antibody tests. Click on the title to read the full alert.
  • IRS Publishes New Guidance on Key Employee Benefit Plan Deadlines June 9, 2020
    COVID-19 Disaster Relief.  IRS issued Notice 2020-35 which provides relief with respect to a number of time-sensitive deadlines, including deadlines relevant to employee benefit plans, individual retirement arrangements (IRAs), Coverdell education savings accounts, health savings accounts (HSAs), and Archer and Medicare Advantage medical saving accounts (MSAs). Click on the title to read the full alert.​​​​​
  • OSHA Fields Over 5,500 COVID-19 Related Employee Complaints and Referrals while State Programs Receive 12,500, and the Numbers Continue to Climb June 9, 2020
    The Occupational Safety and Health Administration (OSHA) publishes data showing the daily increases in the aggregate complaint, referral, and inspection counts of COVID-19-related cases. The counts in the tables are based on compliance and enforcement activities coded with OSHA’s special “N-16-COVID-19” inspection code, which according to OSHA’s previously-issued interim COVID-19 enforcement plan guidance, is to be used for tracking and programming review. All activities that have a COVID-19 component will bear this coding, but the enforcement activities during an inspection are not necessarily limited solely to COVID-19 concerns. The data make quite clear that employee complaints are, by far, the number one trigger for OSHA involvement in COVID-19 safety matters. Click on the title to read the full alert.​​​​​
  • Preparing Your Required COVID-19 Health and Safety Plan For a Phase Two Business Reopening June 1, 2020
    Governor Cuomo has announced the second phase of industries that can start preparing for the reopening process. As part of that process, the State has released detailed guidance, and a safety plan template, for each industry which is part of Phase II of reopening: (1) offices; (2) real estate; (3) essential and Phase II in-store retail; (4) vehicle sales, leases, and rentals; (5) retail rental, repair, and cleaning; (6) commercial building management; and (7) hair salons and barbershops. (See the NY Forward website for a list of businesses considered part of Phase II.) Click on the title to read the full alert.​​​​​
  • OSHA Updates Its Guidance for Recording COVID-19 Illnesses on Employers’ OSHA 300 Logs and Self-Reporting Obligations for Work-Related Fatalities and In-Patient Hospitalizations May 27, 2020

    The Occupational Safety and Health Administration (OSHA) issued an Enforcement Memorandum on May 19, 2020 that updates its prior interim enforcement guidance on the recording obligations of employers for COVID-19 cases on their OSHA 300 logs. The new guidance is effective May 26 and supplants the previously issued guidance from April 10. It will remain in effect until OSHA gives further notice. Click on the title to read the full alert.​​​​​

  • OSHA Guidance For COVID-19 Health and Safety Plans Required for Phased Reopenings of New York Businesses May 18, 2020
    Employers in certain regions across New York began reopening on May 15 in accordance with Governor Cuomo’s Executive Order 202.31 and satisfaction of required COVID-19 metrics. Whether your business is an existing “essential business” continuing its current operations, a Phase 1 business that is reopening, or a Phase 2, 3, or 4 business preparing for a future reopening, your business will likely need to prepare a COVID-19 Reopening Health and Safety Plan. The current Phase 1 guidance states that there will be no waivers from this requirement. In developing their Plans, employers must also consider the implications of the Occupational Safety and Health Act. Click on the title to read the full alert.​​​​​
  • IRS Issues Section 125 Cafeteria Plan Relief to Increase Employer Flexibility During the COVID-19 Pandemic May 18, 2020

    On May 12, 2020, the Internal Revenue Service (“IRS”) released two pieces of guidance providing increased flexibility with respect to Internal Revenue Code section 125 cafeteria plans (“Section 125 plans”). In response to the COVID-19 pandemic, Notice 2020-29 and Notice 2020-33 provide relief including expanded election opportunities, extended claims grace periods, and increased carryover allowances.  Click on the title to read the full alert.​​​​​

  • Preparing Your Required Covid-19 Health and Safety Plan for An Energy Construction Business Reopening May 15, 2020
    Governor Cuomo has announced the first phase of industries that can start preparing for the reopening process, including construction in the energy sector. As part of that process, the State has released detailed guidance regarding construction activities, which is part of the first phase of reopening. Click on the title to read the full alert.​​​​​
  • Preparing Your Required COVID-19 Health and Safety Plan for Business Reopening in New York State May 13, 2020
    Governor Cuomo announced this week the first phase of industries that can start preparing for the reopening process.  Whether your business may reopen depends on three things: (1) your business must be located in a region of the state that has satisfied the metrics for loosening restrictions; (2) the nature of your business must fall within the list of industries covered by the applicable reopening phase; and (3) you as an employer have a COVID-19 Health and Safety Plan in place that details the methods and procedures that will be undertaken to manage COVID-19 risks to employees and customers in the course of operations. Click on the title to read the full alert.​​​​​
  • IRS Issues Additional Guidance on Employee Retention Tax Credit; Consistency with Congressional Intent Again Questioned May 5, 2020
    This is an update to our April 14, 2020 alert which discussed, in part, the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) employee retention credit (“ERC”) for certain employers subject to closure due to COVID-19.  On April 29, 2020, the Internal Revenue Service (“IRS”) released additional Frequently Asked Questions (“FAQs”) on the ERC.  The ERC is not available to businesses that took advantage of the Paycheck Protection Program (“PPP”).  Recent frustration and open questions surrounding the availability of and qualifications for the PPP loan has given way to renewed interest in the ERC for some businesses. Click on the title to read the full alert.
  • Newly Announced Deadline Extensions and Other Disaster Relief for Employee Benefit Plans May 5, 2020
    The federal agencies charged with broad oversight and enforcement authority respecting employer-sponsored benefit plans have issued joint notices announcing the extension of numerous plan-related deadlines during the COVID-19 outbreak. Click on the title to read the full alert.

  • EEOC Gives Green Light to Employers Testing Employees for COVID-19 April 28, 2020
    Last week, the U.S. Equal Employment Opportunity Commission (“EEOC”) updated its COVID-19 guidance twice to address reopening of the workplace and testing employees for COVID-19. According to the new guidance, which applies to employers throughout the United States, management may require the testing of employees for the COVID-19 virus before they enter the workplace. Employers may also check employee temperatures, ask questions about whether an employee is experiencing symptoms of the pandemic virus, and require employees to self-report COVID-19 infection or related symptoms. Click on the title to read the full alert.

  • More Funds for Paycheck Protection Program, More Uncertainty for Businesses April 24, 2020
    President Trump is expected on April 24 to sign into law new legislation that will provide an additional $310 billion in funding for the Paycheck Protection Program (PPP). Once effective, banks should again begin accepting applications for the program. While the additional funding may bring hope to some businesses who were left out of the first tranche of PPP funds, guidance released by the Small Business Administration (SBA) and Department of Treasury (Treasury) on April 23 is causing some borrowers to second guess their involvement in the massive program. Click on the title to read the full alert.
  • Should My Business Apply for an Economic Injury Disaster Loan (EIDL)? April 24, 2020
    In addition to establishing the Paycheck Protection Program (“PPP”) and Main Street lending program, which we have covered in prior alerts here and here, the Coronavirus Aid, Relief, and Economic Security (“CARES Act”) expanded an already-existing program: the Small Business Administration’s Economic Injury Disaster Loan (“EIDL”) Program. EIDL Loans are authorized under Section 7(b) of the Small Business Act, and differ from PPP Loans in several important respects. The information below summarizes the EIDL Program as it has been expanded by the CARES Act. Click on the title to read the full alert.
  • President Trump’s Executive Order on Immigration Due to COVID-19 April 23, 2020
    It began with a late-night tweet earlier this week when President Trump declared his intention to ban immigration to the United States as part of the fight against COVID-19.  The resulting Executive Order, entitled “Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak”, becomes effective at 11:59 p.m. ET on April 23, 2020. Click on the title to read the full alert.
  • Failing to Protect Against COVID-19: Can My Business Be Sued? April 22, 2020
    In the current climate of the pandemic, plaintiffs are bringing claims against businesses, alleging a failure to act to prevent the spread of COVID-19 among their employees and customers. Click on the title to read the full alert.

  • COVID-19 Federal, State and Local Tax Employer Relief Efforts Update, April 17, 2020 (originally published March 21, 2020)
    The unprecedented COVID-19 pandemic has triggered a wide variety of relief efforts from the Federal, state, and local governments. This update will provide insight into several of these relief efforts, and discuss the effect they might have on employers coping with the impact of the Coronavirus on their business operations. Click on the title to read the full alert.
  • Governor Cuomo Signs Executive Order Requiring Employers to Provide All Essential Employees with Masks April 14, 2020
    Governor Cuomo recently signed an executive order mandating that employers provide certain employees with face coverings. Click on the title to read the full alert.
  • Updates to the Paycheck Protection Program April 8, 2020
    On March 30, 2020, Hodgson Russ issued an alert summarizing the basics of the Paycheck Protection Program (“PPP”). Since that release, the Treasury Department issued additional guidance regarding the PPP, found here.  Below are a number of updates relevant to any business’s determination of whether and how to apply for a PPP loan. Click on the title to read the full alert.
  • NYS Department of Health Issues Temperature Monitoring and Return to Work Protocols after a COVID-19 Exposure or Infection April 2, 2020
    As essential business functions and operations continue in New York, employers will inevitably grapple with questions about how, when, and under what circumstances essential employees—in a non-health care setting—may be permitted to work following a suspect exposure or after recovering from the disease. Click on the title to read the full alert.
  • Telecommuting During and After COVID-19: What Every Employer Should Know April 1, 2020
    Last month, the TaxStringer published our article, The Multistate Tax Implications of a Mobile Workforce, on various tax considerations facing employers with an increasingly mobile workforce. How the world has changed in just a few weeks!
  • COVID-19 Stimulus Legislation: Benefit Plans Highlights March 30, 2020
    On March 27, 2020, the President signed into law the Coronavirus, Aid, Relief and Economic Security (CARES) Act (the “Act”).  There are number of provisions relevant to employer-sponsored retirement and welfare benefit plans intended to deliver relief in connection with the Coronavirus pandemic. Click on the title to read the full alert.
  • DOL Provides More Clarity on Families First Coronavirus Response Act Leave Provisions March 29, 2020
    On March 26, 2020 the US Department of Labor (USDOL) issued a second round of questions and answers interpreting the Emergency Paid Sick Leave Act (EPSL) and Emergency Family and Medical Leave Expansion Act (EFMLEA) provisions of the Families First Coronavirus Response Act (FFCRA). Click on the title to read the full alert.
  • What is the $349 Billion Paycheck Protection Plan? March 29, 2020
    The Coronavirus Aid, Relief, and Economic Security, or “CARES Act” was signed into law on Friday, March 27, 2020. Among the programs in the Act is “Paycheck Protection Program”, which is a $349 billion boost to the existing Small Business Administration (SBA) loan guaranty program. Click on the title to read the full alert.
  • New York State Empire State Development Corporation Updates "Essential Business" Guidance March 25, 2020
    Last week, Governor Cuomo issued Executive Order 202.8, which required businesses to reduce their in-person workforce at all work locations within New York State by 100% by March 22nd at 8 p.m. Any business or entity that qualifies as “essential” or that provides “essential services or functions” is exempt from the in-person restrictions.  Click on the title to read the full alert.
  • Federal Government Issues Informal Guidance to Speed FFCRA Tax Credits to Employers March 24, 2020
    On March 20, 2020, the U.S. Treasury Department, Internal Revenue Service (“IRS”) and Department of Labor (“DOL”) issued additional guidance relating to the federal tax incentives and employer compliance under the “Families First Coronavirus Response Act” (“FFCRA”).  Click on the title to read the full alert.
  • Federal and State Legislation Enacted to Address Paid Sick Time and Other Leave Related to COVID-19 Updated March 22, 2020 (originally published March 19, 2020)
    On Wednesday March 18, 2020, President Trump and New York Governor Cuomo both signed into law legislation aimed at providing workers paid sick time and other leave to address absences related to the Coronavirus pandemic and COVID-19. Click on the title to read the full alert.
  • NYS Governor Announces 100% Workforce Reductions Due to Coronavirus Pandemic March 20, 2020
    Editor's Note: Access a recording of the firm's webinar: "Coronavirus: What Employers Need to Know Now" at the end of this alert. On March 18, 2020, Governor Cuomo issued Executive Order 202.6 requiring businesses to reduce their in-person workforce to 50%.  Shortly after the Executive Order was published, Governor Cuomo issued a verbal directive instructing all businesses and not-for-profit employers to further reduce their in-person workforce at any work location by 75% no later than Saturday, March 21st at 8:00 p.m. Click on the title to read the full alert.
  • COVID-19 Employee Benefit Plan Developments March 19, 2020
    As the impact of the COVID-19 virus reverberates throughout the U.S. economy, employers soon will be called upon to address employee benefit issues related to extended employee absences or reductions in hours due to illness or leaves of absence. New legislation and regulation at both the federal and state levels may require immediate changes to the administration of group health plans, as rules affecting permissible cost-sharing and deductible provisions have already been proposed. Click on the title to read the full alert.
  • Cuomo Issues Further Order on Workforce Reduction: Employers Now Down to Twenty-Five Percent March 19, 2020
    Yesterday, we issued an alert on Gov. Andrew Cuomo’s announcement that New York businesses would be prohibited from having more than fifty percent (50%) of their workforce report to work outside of the home. See a copy of our previous alert here. Earlier this morning, the Governor issued Executive Order No. 202.6 providing further guidance on the workforce reduction requirements he had announced the day prior. The Governor’s Executive Order directs that all businesses and not-for-profit entities have until no later than March 20, at 8:00 p.m., to “reduce the in-person workforce at any work locations by fifty percent.” However, Gov. Cuomo’s restrictions appear to have already been rendered obsolete by his most recent verbal directive requiring employers to reduce their in-person workforces to twenty-five percent (25%) in an effort to aid density reduction.  This announcement appears to supersede earlier direction from the Governor’s Office that fifty percent (50%) of employees would have to work from home. We expect another Executive Order will be issued on this topic in the near future. Click on the title to read the full alert.
  • Coronavirus Update: NY Businesses are Required to Keep 50 Percent of Workforce Home March 18, 2020
    During a press conference early Wednesday afternoon, Gov. Andrew Cuomo announced that “no business can have more than 50% of their workforce report to work outside of the home.”  This mandatory workforce reduction order is a further development of the Governor’s policy of requesting employers to implement remote work programs to help prevent the spread of COVID-19. Click on the title to read the full alert.
  • IRS Issues HDHP Coronavirus Relief March 16, 2020
    The IRS issued Notice 2020-15 providing that a high deductible health plan (HDHP) will not fail to be a HDHP for allowing first dollar coverage for benefits associated with the testing and treatment of COVID-19.  Click on the title to read the full alert.
  • COVID-19 Coronavirus and Workforce Considerations for Employers March 6, 2020
    With global concern regarding novel coronavirus (2019-nCoV) and COVID-19 rising and cases in the United States now being widely reported, employers should consider several issues surrounding managing a potential outbreak.  Click on the title to read the full alert.