Long-haulers May Have ADA Protection

The U.S. Equal Employment Opportunity Commission updated a technical assistance document to recognize that those suffering COVID-19 symptoms for long periods of time might have a disability under federal law.

ERTC For 3rd and 4th Quarters

On August 4, 2021, the IRS released Notice 2021-49 (“Notice”), which amplifies prior IRS guidance and sets forth ERC rules for the third and fourth calendar quarters of 2021, which are further discussed below:

  • Applicable Employment Taxes for Claiming ERC. For tax year 2020 and the first two calendar quarters of 2021, eligible employers could claim credit against the employer’s share of Social Security tax, as adjusted for credits claimed under Sections 311(e) and (f) of the Internal Revenue Code (“Code”) and FFCRA (or the equivalent portion of Tier 1 tax under the RRTA). However, for the third and fourth quarters of 2021, eligible employers are entitled to claim the credit against the employer’s share of Medicare tax (or the equivalent portion of Tier 1 tax under the RRTA), as adjusted for credits claimed under Sections 3131 and 3132 of the Code. Any excess credits are refunded to the employer.
  • Maximum Amount of ERC. For tax year 2020, the maximum amount of ERC that could be claimed per employee for all four quarters was 50% of the maximum amount of qualified wages or $10,000, resulting in a maximum available credit of $5,000 per employee for all calendar quarters. For the first two quarters of 2021, the ERC equals 70% of qualified wages per calendar quarter, resulting in a maximum of $7,000 credit per employee per calendar quarter. The same limits continue to apply to the third and fourth quarters of 2021. Thus, the maximum available credit in 2021 per employee for all calendar quarters is equal to $28,000. A separate credit limit applies to “recovery startup businesses” as discussed below.

Note that the Bipartisan Infrastructure Bill (“Bill”), passed by the Senate, proposes to end the ERC program as of September 30, 2021. Thus, regardless of the IRS guidance, the future of the ERC program is not clear and would depend on the final version of the Bill passed by Congress. Since the House of Representatives is on recess until September 20, 2021, we will continue to monitor the ERC developments in the autumn.

NY HERO Act Now In Play

On September 6, 2021, New York Governor Kathy Hochul announced that COVID-19 has been designated as a highly contagious communicable disease that presents a serious risk of harm to the public health under New York State’s HERO Act (“HERO Act” or the “Act”). At the time of the publication of this article, the Commissioner of Health’s designation is only effective until September 30, 2021. On September 30, the Commissioner will review the level of COVID-19 transmission in the state and make a further determination.

As a result, New York employers must now activate their adopted airborne infectious disease exposure prevention plans.

If they have not already done so, all New York employers must take the following steps:

  1. Review and update the plan to ensure that it incorporates the most up-to-date information, guidance, and requirements from federal, state, and local governments related to COVID-19 and its variants;
  2. Finalize and activate the plan;
  3. Conduct a verbal review with all personnel of the New York State Department of Labor’s (“NYSDOL”) infectious disease standard, employer policies relating to the HERO Act, employee rights under the Act, and the employer’s exposure prevention plan;
  4. Provide each employee with a copy of the plan;
  5. Post a copy of the plain in a visible and prominent location in each worksite;
  6. Make sure a copy of the plan is accessible to employees during all work shifts.

Civil Fines Under NLRA Being Considered By Congress

Legislative language released on September 8, 2021 indicates that provisions in the PRO Act imposing civil penalties for unfair labor practices (ULPs), and the creation of new ULPs, will be included when the House takes up “budget reconciliation” in the near future.

The creation of new civil penalties under the National Labor Relations Act (NLRA or “the Act”) would fundamentally change its nature from a “make whole” remedial statute into a punitive one.  As introduced, the reconciliation bill would add fines of up to $50,000 per violation for ULPs under the NLRA.  Where an employer commits a ULP by discriminating or retaliating against an employee for engaging in protected activity, or where an employee is discharged or suffers “serious economic harm,” these fines would be doubled to $100,000 per violation if the employer has committed a similar ULP within the last five years.

Liability for violation of any of the above would extend to any director or officer who directed or committed the violation, had established a policy that led to such a violation, or had actual or constructive knowledge of and the authority to prevent the violation and failed to prevent the violation.

The House is expected to take up this legislation in the near future, although as of this writing it is unclear what final form the reconciliation bill will take.  Even less clear is its fate in the Senate.  Thus far, there does not appear to be unanimous Democratic support for President Biden’s $3.5 trillion package generally, and, as noted above, the PRO Act itself does not yet have even 50 supporters.

VA Permanent COVID Standard Updated

While the overall framework in the original standard remains intact (with universal requirements for all covered employers, heightened requirements for higher-risk employers, an infectious disease plan for higher risk employers, certain training requirements, and anti-discrimination protections), the updated Virginia standard makes a number of notable changes that employers should carefully review:

  • Mandatory written COVID-19 policy: The updated standard now requires all covered employers to implement a COVID-19 policy, covering areas such as (i) workplace safety practices and procedures, (ii) mandatory reporting, (iii) return to work procedures after a COVID-19 exposure or diagnosis, (iv) practices for workplace visitors, and (iv) a method to receive anonymous complaints of violations. Employers will need to review any existing policies promptly to ensure compliance with the updated standard and where needed, update their policies.
  • Updated hazard assessment: While the updated standard removes the earlier risk designations of very high, high, medium, and lower risk employees, it continues to require that employers conduct a workplace safety hazard assessment of each job position (and a PPE assessment for certain positions). It also introduces the concept of a “higher-risk” workplace, which includes employers with mixed-vaccination status employees, work places in areas of substantial or high community transmission, or with otherwise at-risk employees. Employers will need to conduct or update existing hazard assessments to reflect these updated hazard concepts.
  • Updated workplace safety practices: The updated standard changes many of the applicable workplace safety practices and procedures to differentiate between fully vaccinated employees and employees who are unvaccinated or otherwise at risk. The updated standard also provides for enhanced safety requirements for higher-risk workplaces.
  • Updated screening requirements: While the updated standard requires all employers to require employees to report if they are experiencing any signs and symptoms of COVID-19, the daily health assessment or screening requirement now only applies to higher-risk workplaces.
  • Face covering requirement: The updated standard now requires employers to provide and require face coverings for employees who are not fully vaccinated, employees who are fully vaccinated employees in areas of substantial or high community transmission, and employees who are otherwise at-risk, with certain exceptions and accommodation requirements.
  • Revised reporting requirement: The updated standard continues to require that employers report to the Virginia Department of Health (VDH) when there are two or more confirmed COVID-19 cases at the worksite within a 14-day period and now aligns this same reporting standard to DOLI (previously reports to DOLI were only for three or more cases). VDH and DOLI have established a combined online reporting mechanism.
  • Updated return to work requirements: The updated standard now requires that an employee with a known exposure to someone with COVID-19 must follow testing and quarantine guidance by the VDH. An employee suspected to have COVID-19 may only be allowed to return to work after a negative PCR test (paid for by the employer), per the advice of a healthcare professional or VDH, or consistent with CDC guidance.
  • Updated infectious disease control plan: The updated standard requires employers with higher-risk workplaces and 11 or more unvaccinated employees to prepare a written infectious disease preparedness and response plan covering certain specific practices and to train employees on such plan. The deadline to implement such a written plan is October 8, 2021.
  • Updated training: The updated standard requires employers with higher-risk workplaces to provide COVID-19 training to employees on the requirements of the standard as well as site-specific procedures to be followed (although employers may satisfy the training requirement by providing fully vaccinated employees’ written information in lieu of training). The deadline to conduct the required under the updated standard training is November 7, 2021.

Cal Forced Arbitration Ban Revived

The Ninth Circuit on Wednesday struck down an injunction that stopped California from enforcing a law barring businesses from requiring workers to arbitrate job-related claims, but held that certain provisions that allow criminal penalties against employers are invalid.

Tripping On A Sidewalk on Break Can Be Compensable

The Georgia Court of Appeals has ruled that an employee who fell on the sidewalk on her way to her employer’s parking lot during her lunch break qualifies for Georgia workers’ compensation benefits. The decision reverses the court’s prior rulings due to a June 2020 Georgia Supreme Court holding that injuries suffered during lunch or bathroom breaks are considered to have occurred in the course of employment.

Written by: Gordon M. Berger, Partner 

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