American Rescue Plan Act Contains COBRA Subsidies

On March 11, 2021, President Biden signed the American Rescue Plan Act of 2021 (“ARPA” or the “Act”) into law. The Act creates a six-month subsidy period, from April 1, 2021 to September 30, 2021, during which individuals who lost health insurance coverage because of an involuntary termination or reduction in hours may qualify for a 100% subsidy for COBRA coverage.  

This subsidy has no income threshold, but an employee or family member who is or becomes eligible for other group health coverage or Medicare is not eligible.  The employee has the obligation to notify their employer if the employee is not eligible or loses eligibility for the subsidy.   The Act suspends an eligible individual’s obligation to make the required COBRA premium payments for up to six months. Instead, the employer, plan, or insurer will be required to pay the individual’s premium payments during that period. To offset this cost and recover the cost of the coverage, the employer, plan, or insurer may claim a credit against Medicare payroll taxes or receive a refund of overpayment for credit amounts which exceed payroll taxes.  

ARPA also creates an extended COBRA election period for those who previously declined COBRA coverage, or whose coverage was terminated because of non-payment of premiums.  Those individuals will now have sixty days after receipt of the new COBRA notice to elect COBRA coverage. Furthermore, COBRA elections within this 60-day period will be forward looking, not retroactive to the date coverage was lost. However, the Act does not extend COBRA coverage; any COBRA coverage will still expire eighteen months after health insurance coverage was lost, which could potentially occur during the subsidy period.   

The enactment of ARPA creates new obligations for employers. Employers must determine which of their employees lost health care coverage because of an involuntary termination or reduction in hours on or after November 1, 2019.  The Act also creates required notices regarding the availability of the subsidy, the extended election period for COBRA coverage, and a notice of the expiration of the subsidy.  Employers or their third-party COBRA administrators will be required to send such notices to each qualified employee by May 31, 2021.  Pursuant to the Act, the U.S. Department of Labor is also required to issue model notices by May 1, 2021, that employers and third-party plan administrators may use. Employers who use third-party COBRA administrators for COBRA administration should confirm that those administrators are sending the new required notices to employees and providing the information employers need to claim the payroll tax credit.   

If you have any questions regarding the new COBRA subsidy or any other COBRA-related issues, please do not hesitate to reach out to any member of Mirick O’Connell’s Labor, Employment, and Employee Benefits Law Group. 

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The American Rescue Plan and Paid Leave: What Employers Need to Know

On March 10, 2021, Congress passed the American Rescue Plan Act of 2021.  President Biden is expected to sign the Act into law by March 14, 2021. Employers are rightfully eager to learn whether the Act extends the Families First Coronavirus Response Act (the “FFCRA”).  The short answer is “no, but your voluntary policies should be updated.”  The longer answer is below.

As explained in a prior post, employer obligations under the FFCRA expired on December 31, 2020.  While employers were subsequently not obligated to provide FFCRA-eligible leave, Congress extended the tax credit for employers who voluntarily continued to provide such paid leave through March 31, 2021. 

The Act does not resurrect the FFCRA or impose upon employers an obligation to provide paid leave for COVID-19 related reasons.  However, the legislation extends the tax credit for voluntary provision of leave through September 30, 2021. The tax credit, however, is not available to government entities.

In addition, employers must be aware that the legislation:

  • Provides that the tax credits are available for paid sick leave for three additional following qualifying reasons:
    1. the employee is obtaining a COVID-19 vaccination;
    2. the employee is recovering from any injury, disability, illness or condition related to such vaccination; and
    3. the employee is seeking or awaiting the results of a diagnostic test or medical diagnosis for COVID-19 as requested by the employer.
  • Adds a non-discrimination provision designed to encourage the uniform application of COVID-19 paid leave across an employer’s workforce.  Specifically, the provision provides that the tax credit is not available if the employer – in determining the availability of paid leave – discriminates in favor of highly compensated employees, full-time employees, or employees on the basis of their tenure with the employer.  
  • Re-sets the 10-day count for paid sick leave beginning April 1, 2021.  Accordingly, employers are eligible for a tax credit if they voluntarily provide employees an additional 10 days of FFCRA sick leave beginning on April 1, 2021.  

In light of the above, employers who elect to voluntarily provide paid leave should review and update their related policies to incorporate the new provisions and ensure that the application of voluntary leave does not violate the non-discrimination provision.  

In addition, while the Act does not extend the obligation of employers to provide paid COVID-related leave, employers must continue to watch for additional legislation regarding such leave from both the federal and state governments.  Indeed, we are closely monitoring proposed legislation in Massachusetts that could impose new paid leave requirements on employers.

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Massachusetts Federal Court Denies Motion to Dismiss Defamation Claim After Employee is Escorted Out of Work Following Termination

By: Jonathan Sigel, Esq. and Ashlyn Dowd, Esq.

The Federal District Court of Massachusetts recently denied a defendant company’s motion to dismiss a defamation claim following the termination of the company’s Vice President.  The plaintiff former employee, Sandra Madden, was terminated from Ascensus College Savings Recordkeeping Services (“Ascensus”) and subsequently filed suit alleging several claims such as breach of contract, violation of Federal Equal Pay Act, and gender discrimination.  ACS moved to dismiss the following claims for failure to state a claim upon which relief can be granted: (1) breach of contract, (2) breach of implied covenant of good faith and fair dealing, and (3) defamation.  The Court granted the motion to dismiss in part, but allowed the defamation claim to proceed.

Madden’s defamation claim was based on the way Ascensus treated her at the time of her discharge.  Specifically, after Ascensus informed her that she was being terminated, Ascensus personnel escorted her out of ACS’ offices in front of her co-workers and suspended her email access.  Madden alleged that her treatment in that regard was unusual and that no prior Vice President or President of Ascensus had ever been treated in that manner when they were terminated.  In her Complaint, Madden further alleged that the conduct was a “false statement” that “suggest[ed] that [she] had engaged in criminal activity” and “discredited her in a respectable class of the community.”

In denying the motion to dismiss, the Court emphasized that, under Massachusetts law, conduct alone can support a defamation claim, citing the cases Phelan v. May Dep’t Store Co., 443 Mass. 52 (2004) and Craig v. Merrimack Valley Hosp., 45 F. Supp. 3d 137 (D. Mass. 2014).  Because a plaintiff has a relatively low threshold to defeat a motion to dismiss (which is filed prior to the discovery process), Madden was only required to allege a plausible claim that third parties would have reasonably understood Ascensus’ conduct to be defamatory. Madden’s complaint included three allegations supporting her claim that being walked out of the building after she was terminated constituted defamatory conduct.  Thus, the Court denied Ascensus’ motion to dismiss her defamation claim.

The Court made it clear that its decision to allow the defamation claim to survive did not mean that Madden’s defamation claim would survive a motion for summary judgment (which is filed after discovery is completed), but that Madden had alleged sufficient facts regarding her defamation claim to survive a motion to dismiss that claim. So, what can employers learn from the court’s denial of Ascensus’ motion to dismiss Madden’s defamation claim?  The case and the court’s ruling provides employers with a cautionary tale about how employees should be treated when they are being discharged – even when the discharge itself is lawful.  When terminated employees are treated with dignity, respect and as much privacy as practicable, they often do not consider taking any legal action against their former employers.  However, as the Madden case reflects, when such employees are treated in a harsh, disrespectful or embarrassing manner, they frequently obtain legal counsel and pursue legal claims which can be extremely costly for the former employer – even if the company can ultimately prevail on the merits of the case.  Following the “golden rule” is the best approach – that is, management should treat such individuals the way management would want to be treated in similar circumstances.  While that may not guaranty that the terminated employee will not file a lawsuit, it will certainly help reduce the chances of that happening.

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EEOC Opinion Letter: Older Workers Benefit Protection Act (OWBPA)

On January 14, 2021, the Equal Employment Opportunity Commission (EEOC) finally issued an opinion letter addressing the long standing issue of whether information about non-U.S. citizen employees working outside of the United States must be included in the information disclosure to a covered individual as otherwise required by the Older Workers Benefit Protection Act (OWBPA).  The EEOC concluded that non-citizen information is not required to be included in the disclosures.

What is the ADEA and OWBPA?

The Age Discrimination in Employment Act of 1967 (ADEA) makes it “unlawful for an employer … [to] discriminate against any individual [at least 40 years of age] with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. §§ 623(a), 631(a).  The OWBPA, which imposed specific requirements for releases of ADEA claims, states that any waiver under the ADEA must be “knowing and voluntary.”  If a waiver is part of a group termination or exit incentive program, the employer must provide employees with a description of the “decisional unit” and the eligibility factors for inclusion in the program, the job titles and ages of all individuals within the decisional unit who were eligible for the program, and those within the decisional unit who were not selected.

The EEOC’s Opinion Letter

The Commission concluded that employers subject to the requirements of the ADEA are not required to include employees working outside the United States who are not U.S. citizens in OWBPA disclosures because such individuals are not “employees” for purposes of the ADEA. 

According to 29 U.S.C. § 626(f)(1)(H), only covered employees within the applicable “decisional unit” must be included in an OWBPA disclosure.  The ADEA does not protect non-U.S. citizens working for companies outside of the United States.

The EEOC further explained one of the main purposes of the OWBPA is to ensure covered employees are provided sufficient information to evaluate exit incentive or termination programs before waiving their rights under the ADEA.  If employers were to include non-covered employees in these OWBPA disclosures, it would likely mislead employees or “mask potentially unlawful discrimination”.

Further, employers may apply different selection criteria or eligibility requirements when administering the domestic and international components of a separation program.  The regulations provide that “[w]hen identifying the scope of the ‘class, unit, or group,’ and ‘job classification or organizational unit,’ an employer should consider its organizational structure and decision-making process.”  An employer may be required to offer different separation benefits to employees working in countries outside the United States to comply with the foreign country’s requirements governing separations.

The Commission Opinion Letter clarifies that employers are not required to include non-U.S. citizen international employees in the OWBPA disclosure, but if employers choose to voluntarily include non-U.S. citizen employees in the disclosures, they must make sure they do so without misleading other covered employees.

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Link Fixed! Minimum Wage Increases to $13.50 Per Hour While Holiday and Sunday Premium Pay for Retail Employees Continues Down The Path To Abolishment

As of January 1, 2021, the minimum wage for regular employees (i.e., non-tipped minimum wage employees) increased to $13.50 per hour.  The minimum wage is scheduled to increase twice more, to $14.25 and $15.00 per hour, on January 1, 2022 and January 1, 2023, respectively.  The minimum wage for tipped employees is currently $4.95, with $.60 increases scheduled for January 1, 2022, and January 1, 2023.      

In addition, retail employers will recall that as part of the “Grand Bargain” that was signed into law by Governor Baker in 2018, the premium pay requirement for retail workers working on Sundays and certain holidays will be gradually eliminated until it is abolished in 2023.  As of January 1, 2021, the premium pay rate for retail employers decreased from 1.3 to 1.2 times an employee’s regular hourly rate.  The premium pay rate will decrease to 1.1 times an employee’s regular hourly rate in 2022, and will be completely abolished as of January 1, 2023. 

The holidays for which retail employees are entitled to premium pay include New Year’s Day, Memorial Day, Juneteenth, Independence Day, Labor Day, Columbus Day after 12:00 P.M., and Veterans Day after 1:00 P.M.

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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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