President Biden Issues Executive Order Regarding Workplace Discrimination

That was quick! On his first day in office, President Joseph Biden issued the Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.  With the Executive Order, President Biden instructed each federal agency to “as soon as practicable” revise, suspend, or rescind all existing regulations, orders, guidance documents, policies, programs, and all agency actions that prohibited sex discrimination but did not include gender identity and/or sexual orientation as protected classifications within sex discrimination.  The Order further instructs agencies to, as necessary, promulgate new actions necessary to fully implement the inclusion of gender identity and sexual orientation as protected classifications.

These protections have been in place for Massachusetts employees under M.G.L. c. 151B, but the Order instructs federal agencies to bring federal statutes (and potential claims) in line with the same protections provided by our state’s law prohibiting discrimination and harassment on the basis of sexual orientation and gender identity.  

This is the first in what is expected to be a flurry of quick actions by President Biden which will impact employers.  Stay tuned!

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COVID-19 Related Updates for Massachusetts Employers

New COVID Relief Bill

On Monday, December 21, 2020 the United States Congress passed the Consolidated Appropriations Act, 2021, which includes several provisions aimed at providing COVID-19 relief (the “Relief Bill”).  As public employers and employers with less than 500 employees are aware, the Families First Coronavirus Response Act (“FFCRA”), which required such employers to provide paid sick and family leave to employees for COVID-related reasons, expires by its terms on December 31, 2020.  The Relief Bill – as currently interpreted pending guidance from the Department of Labor (the “DOL”) – allows employers to take employment tax credits for amounts paid to employees from January 1, 2021 through March 31, 2021 for leave taken that would qualify for leave under the FFCRA.  The Relief Bill does not mandate that employers continue to offer leave under the FFCRA, but, rather, incentivizes employers to voluntarily continue to offer leave under the FFCRA.

It is unclear if the Relief Bill permits employers to provide employees with renewed leave entitlements beginning on January 1, 2021.  For example, if an employee used 80 hours of FFCRA leave to recover from COVID in 2020, can the employer offer the employee another 80 hours of FFCRA leave to care for a family member with COVID in 2021?  The answer appears to be “no,” but the DOL may issue guidance to the contrary.

It is also unclear if the Relief Bill has any impact on public employers.  The FFCRA specifically provides that public employers were not permitted to take tax credits for FFCRA leave prior to December 31, 2020, so it is unlikely that the Relief Bill was intended to permit them to do so beginning in January 2021.

Governor Baker Further Limits Business Capacity

On Tuesday, December 22, 2020, Massachusetts Governor Charles Baker announced that businesses will be subject to a 25% capacity limit beginning on Sunday, December 27, 2020.

We are closely monitoring the DOL for the issuance of additional guidance regarding the Relief Bill, and we are also keeping apprised of restrictions being issues by the Massachusetts Governor.  Stay tuned!

In the meantime, if you have any questions, please do not hesitate to contact us.

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EEOC Releases Guidance on Mandatory Vaccinations

With Pfizer’s COVID-19 vaccine receiving emergency approval from the FDA, and emergency approval for Moderna’s vaccine expected shortly, many employers are wondering whether they can require employees to receive the vaccine once it becomes available to the general public. On December 16, 2020, the Equal Employment Opportunity Commission (“EEOC”) released guidance addressing this question and several others. Employers are well-advised to review Section K of the guidance in its entirety because it contains many important considerations.  

Based on the guidance, it is apparent the EEOC believes employers may require employees to be vaccinated, subject to two primary exceptions. Specifically, an employer may not require employees to be vaccinated if the employee has a disability and/or a sincerely-held religious practice or belief that prevents him/her from receiving the vaccine.

           What If An Employee Has A Disability?

If an employee has a disability that prevents him/her from getting vaccinated, the employer must first determine whether allowing an unvaccinated employee in the workplace poses a “direct threat” to the health or safety of the employee or others in the workplace. To determine whether a direct threat exists, employers must assess four factors: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm. Notably, the EEOC advises that an employer’s conclusion “that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite.” 

If the unvaccinated employee is found to present a direct threat, the employer must attempt to provide the employee with a reasonable accommodation, absent an undue hardship. For example, the employer could permit the employee to telework (assuming the employee can perform the essential functions of his/her job while teleworking). If, following an interactive dialogue, no reasonable accommodation that would eliminate the direct threat to the workplace is identified, the employer could exclude the employee from physically entering the workplace. However, an employer may not automatically terminate the employee simply because the employee is physically excluded from entering the workplace.   

  What If An Employee Has A Sincerely Held Religious Belief?

If an employee states that his/her sincerely held religious belief, practice, or observance does not allow him/her to receive a vaccine, employers are required to provide a reasonable accommodation under Title VII of the Civil Rights Act, unless such an accommodation would pose an undue hardship on the employer. If, after engaging in an interactive dialogue with the employee, no reasonable accommodation exists, then an employer, under the EEOC’s guidance, may lawfully exclude the employee from the physical workplace. As with a disabled employee, the fact that an employer may exclude an unvaccinated employee who holds a sincerely-held religious belief from the workplace does not mean that it may automatically terminate the employee’s employment.

These are complex, fact-specific issues. Please do not hesitate to contact any member of Mirick O’Connell’s Labor, Employment, and Employee Benefits Group if you need assistance navigating this process. We are here to help! 

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Massachusetts’ Sector Specific Workplace Safety Standards for Office Spaces Updated

Governor Baker’s administration updated Massachusetts’ Sector Specific Workplace Specific Safety Standards for Office Spaces to Address COVID-19 (the “Standards”).  While all employers operating office spaces are advised to review the complete Standards, key provisions are:

Face coverings: workers and visitors must wear face coverings at all times, except when in their own individual workspace and alone (or when it is unsafe for a worker/visitor to wear a face covering due to a medical condition or disability).

Occupancy: offices must limit occupancy to whichever is greater of: (a) 40% of the building’s maximum permitted occupancy as documented in its occupancy permit; or (b) for buildings where no occupancy limit is on record, 8 persons per 1,000 square feet of accessible space.  However, the guidance states that in any case, no enclosed space may exceed occupancy of 8 persons per 1,000 square feet.

Social Distancing: employers must ensure separation of 6’ or more between individuals, unless doing so creates a safety hazard.  Employers must close or reconfigure common spaces to allow 6’ of physical distancing and physical partitions (at least 6’ high) must be installed for areas that cannot be spaced out.  Employers must also mark rooms and hallways to indicate 6’ separation.

Training: employers must provide training to workers on up-to-date safety information and precautions, including: social distancing, hand washing, proper use of face coverings, self-screening at home, the importance of not coming to work if ill, when to seek medical attention if symptoms become severe, and which underlying health conditions may make individuals more susceptible to contracting and suffering from a severe case of the virus.

Screening: employer must screen workers at each shift by ensuring each of the following: (1) the worker is not experiencing any symptoms; (2) the worker has not had “close contact” with an individual diagnosed with COVID-19; and (3) the worker has not been asked to self-isolate or quarantine by a doctor or local public health official.

Remote Work: employers are encouraged to have workers continue to telework if feasible, and external meetings should be remote to reduce density in the office.

Violations may result in fines of $500 per violation.  Violations of capacity limits results in fines of $500 for each person present over the applicable capacity limit.

In addition, the Standards provide that employers who operate office spaces are responsible for staying abreast of any updates to these requirements and adhering to all local, state, and federal requirements.  If you have any questions about the application of the Standards, or whether different standards may apply to your operations, please do not hesitate to contact us.  

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Paid Family and Medical Leave is Right Around the Corner!

Beginning on January 1, 2021, covered individuals in the Commonwealth will be eligible to begin using Paid Family and Medical Leave (“PFML”). Under the law – which was enacted in 2018 as part of the so-called “Grand Bargain” between the Governor and the Legislature – covered individuals are entitled to take up to 26 weeks, in the aggregate, of paid family and medical leave during a benefit year.

Mirick O’Connell’s Labor, Employment and Employee Benefits Group has been actively working to prepare our clients for PFML’s arrival. Recently, Attorneys Jonathan Sigel and Corey Higgins recorded a 60-minute webinar detailing PFML’s major provisions, including, eligibility requirements, leave entitlement, the process for requesting, and applying for, PFML, how PFML benefits interact with other paid benefits, including short-term disability and/or company-paid parental or caregiver leave, and job restoration requirements. If you have the time, we strongly encourage you to view the webinar in the coming weeks and let us know if you have any questions or comments! Click here and enter the passcode: l528!x3c to view the webinar at your convenience.

In addition to the webinar, our Group, led by Jonathan, Corey, and Amanda Baer, has developed policy language to assist employers in implementing many of the PFML’s provisions as discussed in the webinar. Jonathan, Corey, Amanda, or any member of the Group, are available to assist you with drafting and implementing a PFML policy for your particular business.

Outside of Mirick O’Connell, the Department of Family and Medical Leave has been hard at work preparing for the January 1, 2021 effective date. In that respect, the Department has recently published a New PFML Poster and a Certification Form for a Serious Health Condition – something Jonathan touched on his in recent blog post.

As January 1, 2021 quickly approaches, please do not hesitate to reach out to us for assistance with any questions or issues regarding PFML.

From all of us here in the Labor, Employment and Employee Benefits Group, we wish you and your families a happy and healthy holiday season!

 

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What does the December 8th Rollback Mean for Massachusetts Employers?

On December 8, 2020, Governor Charles Baker issued COVID-19 Order No. 58, which returns all of Massachusetts to Step 1 of Phase 3 of the Commonwealth’s reopening plan, effective December 13, 2020.   As a result, all “Phase 3, Step 2” business that were recently permitted to open (indoor performance venues and high-contact indoor recreational activities) must now close their brick-and-mortar premises.  In addition, all other business that may remain open may only operate pursuant to Step 1 Sector-Specific COVID-19 workplace safety rules.

The Order provides that revised Sector-Specific COVID-19 workplace safety rules shall be issued.  In the meantime, the Governor’s press release indicates that capacity for offices will be reduced from 50% to 40% and that employees in offices must wear masks at all times, unless they are alone in their own workspace.  In addition, employers are encouraged to close or limit the use of all break rooms and to offer teleworking to employees when possible.

We will continue to monitor and provide updates when the revised Sector-Specific COVID-19 Workplace Safety Rules are issued.

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PFML Certification Form for a Serious Health Condition

This week, the Massachusetts Department of Family and Medical Leave published a Certification of a Serious Health Condition form, which must be completed when an individual requests medical or family leave under the new Massachusetts Paid Family and Medical Leave law (“PFML”). As indicated on this form, it is not to be used when an individual seeks to take parental leave or active duty leave (for covered servicemembers) under the PFML. 

While the individual applying for leave must complete the first part of the form, most of the certification must be completed by the individual’s health care provider. Please note that, unlike the federal Department of Labor’s medical certification form for leave under the Family and Medical Leave Act (“FMLA”), which employers may choose to utilize in determining an employee’s eligibility for FMLA leave, the PFML Certification of Serious Health Condition form must be used for individuals requesting leave and benefits under the PFML. 

Because FMLA will frequently run concurrently with PFML, we recommend that our clients use both the PFML and FMLA medical certification forms when an employee is eligible for leave under both laws. We also recommend that our clients take steps now to ensure that their FMLA benefit period matches the PFML benefit period which is forward looking. Since most employers utilize a “rolling” FMLA period, which is based on a “look-back” in time, they will need to give 60 days’ notice to employees to utilize a forward looking benefit period for FMLA-qualifying leave. If you have any questions about the new PFML Certification of a Serious Health Condition form, changing your FMLA benefit period, or any other issues regarding the PFML, please do not hesitate to reach out to any attorney in the Firm’s Labor, Employment, and Employee Benefits Law Group.

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Employers Must Ensure Compliance with the Families First Coronavirus Response Act as they Re-Open and Recall Employees from Furlough

The U.S. Department of Labor recently issued new Questions and Answers regarding its interpretation of the Families First Coronavirus Response Act (“FFCRA”). In relevant part, the DOL made clear that if an employer is calling employees back from furlough, the employer may not use either (a) the fact that an employee requested leave under the FFCRA prior to the furlough; or (b) an assumption that an employee may request leave under the FFCRA if called back, in making the decision as to which employees to recall from furlough. Employers also may not use an assumption that a prospective employee may request leave under the FFCRA in determining whether or not to hire such prospective employee.

To illustrate, assume Employee A requested FFCRA leave when her daughter’s school was closed in March 2020. Employee A was granted the leave request and was on leave until the employer conducted furloughs in May 2020. If the employer is bringing employees back from furlough, the employer cannot use the fact that Employee A was on leave at the time of furlough and/or the employer’s assumption that Employee A may again request FFCRA leave in making the determination as to whether to call back Employee A from furlough.

The DOL’s guidance also confirmed that an employee’s entitlement to leave under the FFCRA does not “restart” when an employee is called back from furlough. For example, if an employee used 10 hours of Emergency Paid Sick Leave prior to the furlough, the employee is entitled to use the remaining 70 hours (for a qualifying reason) after being returned, but is not entitled to use 80 hours as if they were a new employee.

In addition, the time an employee spent furloughed does not count toward the employee’s leave entitlement under the Emergency Family and Medical Leave Act. To illustrate, assume a full-time employee is entitled to 480 hours of EFMLA (40×12), used 100 hours of EFMLA leave prior to the furlough, and was then furloughed for 5 weeks (which would correlate to 200 hours). The 200 hours of furloughed time does not count against the employee’s EFMLA entitlement. Accordingly, if/when the employee is recalled, the employee is entitled to use the remaining 380 hours of EFMLA (if qualified) upon his or her return.

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Update: Families First Coronavirus Act

webinarThe Department of Labor issued new guidance over the weekend regarding the Families First Act, including important definitions and clarifications.  I broke down the new guidance into the overall framework of the new EFMLA and EPSLA in this recorded webinar.

If you have any questions or need assistance, please contact any member of our Labor, Employment and Employee Benefits Team.

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Department of Homeland Security Relaxes Standards for Verifying Work Authorization

 

As a result of the COVID-19 pandemic, the Department of Homeland Security has relaxed its standards requiring in-person review of work authorization documents required to complete the I-9 form. Specifically, if an employer has no employees physically present at a work location to be able to perform in-person review of documents, the employer is now permitted to review work authorization documents remotely in order to complete an I-9 form within three days of a new hire. Employers doing so, however, must provide written documentation of their remote onboarding and telework policy to each employee being hired.

If an employer continues to have any employees working physically on site, the relaxed standard is not available to that employer. Once normal operations resume, all employees who were onboarded using remote verification must receive in-person verification of identity and employment eligibility within three business days to remain in compliance with the I-9 requirements.

As you continue to navigate the myriad employment issues arising as a result of the pandemic, Mirick O’Connell’s Labor and Employment team stands ready to assist. Please contact any member of our team with questions.

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