Category: Labor & Employment

Are Employers Required to Pay For Employee Time Spent Receiving COVID-19 Vaccine?

Although millions of people in the United States have been vaccinated since COVID-19 vaccine distribution began in December 2020, a large percentage of the population still remains unvaccinated. Many lawmakers and companies are brainstorming ways to remove barriers to individuals obtaining the vaccine, especially frontline workers who remain at a higher risk of COVID-19 exposure and infection. One such barrier is the time away from work that may be required to obtain the vaccination and the risk that the time will be unpaid. Many employers, including manufacturers, are questioning whether they must, or should, provide employees with paid time off for time spent related to obtaining the COVID-19 vaccine.

On the federal level, there is generally no law specifically requiring payment for employee time spent obtaining the vaccine or recovering from side effects or complications other than as it relates to federal contractors that may be required to provide paid sick leave. That being said, some companies that voluntarily choose to provide their employees with such paid time may be eligible for tax credits under the Families First Coronavirus Response Act (FFCRA).  While the requirement to provide paid leave under this law expired at the end of 2020, the Consolidated Appropriations Act (CAA) extended the availability of the tax credit to employers who voluntarily provide such leave through March 31, 2021 and the American Rescue Plan Act of 2021 (ARPA) subsequently extended the availability of the tax credit through September 30, 2021. It is important to note that previously, if an employer provided paid sick leave to an employee and claimed a tax credit for the leave provided to that employee in 2020, the employer was not able to claim the tax credit for any leave provided to that employee in 2021. However, ARPA now permits employers to receive a payroll tax credit for up to ten additional days of paid sick leave for employees starting April 1, 2021 (even if the employer previously took a tax credit for paid sick leave for those employees prior to that time). This means that employers may now offer up to an additional ten days of paid sick leave to employees, even if the employee exhausted his/her FFCRA leave in 2020 or the first quarter of 2021, and the employer may still claim a tax credit for this leave. Importantly, ARPA also expanded the qualifying reasons for paid sick leave to include time spent obtaining the vaccine and recovering from any injury, disability, illness, or condition related to vaccination, among other reasons.

On the state level, there may be laws that require payment including more recent laws that have been passed. For example, New York recently enacted a law that requires all public and private employers to provide employees with four hours of paid leave, per dose, to obtain the COVID-19 vaccine. Additionally, existing state and local paid sick leave laws may cover time spent obtaining the vaccine (e.g., preventative care) as well as time spent recovering from side effects or complications or assisting a family member in this regard.

Additionally, payment may be required under wage payment laws. Depending on the circumstances, exempt employees may be entitled to their full salary for time off (both hours and days) related to obtaining the COVID-19 vaccine. Further, employers that implement mandatory vaccine policies may be required to pay for the time obtaining the vaccine as such time may be considered “working time” even if it occurs outside normal working hours.

Copyright © 2021 Robinson & Cole LLP. All rights reserved.

ARTICLE BY Abby M. Warren,  Alisha N. Sullivan and Emily A. Zaklukiewicz of  Robinson & Cole LLP
For more articles on COVID-19, visit the NLR Coronavirus News section.

Are Your Workplace Policies Compliant with the NLRA?

NLRB issues Memorandum GC-21-03 Signaling Aggressive and Expanded Enforcement of Section 7 Rights

On 31 March 2021, Peter Sung Ohr, Acting General Counsel of the National Labor Relations Board (NLRB), issued Memorandum GC 21-03 (GC 21-03) to the regional field offices signaling significant changes to enforcement priorities under Section 7 of the National Labor Relations Act (NLRA). In part, GC 21-03 indicates that the NLRB will be “robustly enforcing the Act’s provisions that protect employees’ Section 7 rights” and that “cases involving the retaliation against concerted employee conduct will be vigorously pursued.” GC 21-03 cites to increased workplace health and safety issues resulting from the COVID-19 pandemic as well as employees’ political and social justice advocacy concerns as factors necessitating increased enforcement of the NLRA.

NLRA Protections

The NLRA is a federal law that grants employees the right to form or join unions; engage in protected, concerted activities; address or improve working conditions; or refrain from engaging in such activities. The NLRA applies to almost all private employers but does not apply to federal, state, or local governments; employers who employ only agricultural workers; and employers subject to the Railway Labor Act. Some employers are surprised to find that the NLRA protects nearly all employees in the private sector, not only union employees or employees seeking to form or join a union. In fact, concerted activities protected under the NLRA often occur outside of the context of union activity. The NLRA does not cover, however, government employees, agricultural laborers, independent contractors, and supervisors (with limited exceptions).

It is not uncommon for the NLRB and its general counsel to modify or reverse their interpretations of the NLRA with changes in the composition of the Board. The political party of the presidency enjoys majority representation on the NLRB. Consequently, changes in the presidential administration often lead to significant changes for employers. GC 21-03 is emblematic of that trend. It states that “recent decisions issued by the current Board have restricted [Section 7 rights] for employees.” Specifically, GC 21-03 criticizes Alstate Maintenance1 and Quicken Loans2 for applying “mutual aid and protection” narrowly. The enforcement priorities highlighted in GC 21-03 are in stark contrast to enforcement priorities under the previous administration and a clear indication that employers should expect increased NLRB oversight for the foreseeable future.

Broadened Concerted Activities for Mutual Aid and Protection

Section 7 of the NLRA grants all covered employees the right to engage in “concerted” activities for the purpose of “mutual aid or protection.” The phrase “mutual aid or protection” focuses on “whether there is a link between the activity and matters concerning the workplace or employees’ interests as employees.”3 GC 21-03 indicates that such a link will be broadly construed, and it outlines an expansive characterization of what constitutes protected, concerted activity. As noted in GC 21-03, employee advocacy can have the goal of “mutual aid or protection” even when the employees have not explicitly connected their activity to workplace concerns. As examples, GC 21-03 cites to a solo strike by a pizza shop employee to attend a convention; protests in response to a sudden crackdown on undocumented immigrants or social justice concerns; and a hotel interview with a journalist concerning minimum wage issues. In addition, GC 21-03 highlights how concerted activity can occur outside of the context of union activity—such as when employees raise health and safety issues resulting from the COVID-19 pandemic or seek protections from government agencies.

Renewed Application of Inherenty Concerted Conduct

In addition to a clear directive to interpret concerted and protected activity more broadly under the NLRA, GC 21-03 also signals a renewed enforcement of conduct that is deemed “inherently concerted.” As noted in GC 21-03, employee conduct generally becomes concerted when it is “engaged in with or on the authority of other employees”4 or when an employee seeks either “to initiate or to induce or to prepare for group action.”5 In other words, concerted conduct revolves around employees’ intention to band together to improve their wages or working conditions. However, contemplation of group action is not required and employee discussions surrounding certain employment policies may be sufficient to constitute inherently concerted activity—even if group action has not yet been contemplated or is in its early stages. Indeed, as noted in GC 21-03, inherently concerted conduct need only involve a “speaker and a listener.” Further, GC 21-03 emphasizes that there are no “magic works” required for concert to attach. However, the NLRB has previously found that certain categories of workplace life have been found to be “inherently concerted”—namely, exchanges of information concerning (i) wages or wage differentials, (ii) changes in work schedules, (iii) job security, (iv) workplace health and safety, and (v) racial discrimination. GC 21-03 expressly warns that the NLRB will be considering such categories as well as “other applications of the inherently concerted doctrine” for the foreseeable future.

Key Takeaways

  • Employers should work with their counsel to ensure their workplace policies are compliant with the NLRA, including the expansive definition of protected conduct that will be enforced for the foreseeable future.
  • Employers should expect an increase in NLRB oversight and NLRA enforcement.
  • Employers should expect an increase in complaints brought by the NLRB, including increased prosecution of cases involving retaliation against concerted employee conduct.
  • Employers should exercise caution when deciding whether or not to discipline or discharge employees who have engaged in discussions or activities related to workplace health and safety (importantly as related to the COVID-19 pandemic), social justice issues, or political views.

1 367 NLRB No. 68 (2019).

2 367 NLRB No. 112 (2019).

3 Fresh & Easy Neighborhood Mkt., Inc., 361 NLRB 151, 153 (2014).

4 Meyers Indus., 268 NLRB 493, 497 (1984) (Meyers 1), remanded sub nom. Prill v. NLRB, 755 F. 2d 941 (D.C. Cir. 1985), cert. den. 474 U.S. 948 (1985).

5 Meyers Indus., 281 NLRB 882, 887 (1986) (Meyers II), affd. sub nom. Prill v. NLRB, 835 F. 2d 1481 (D.C. Cir. 1987), cert. den. 487 U.S. 1205 (1988).

Copyright 2021 K & L Gates

ARTICLE BY Rosemary Alito and  Rio J. Gonzalez of K&L Gates
For more articles on the NLRB, visit the NLR Labor & Employment section.

American Jobs Plan, By the Numbers

On March 31, 2021, President Biden released details on the American Jobs Plan, which provides funding for infrastructure, clean energy, innovation and R&D, manufacturing and workplace support, and the caregiving economy. The proposal also includes revenue increase proposals to partially offset the new initiatives. Here is a summary of the amounts proposed in each major category:

INFRASTRUCTURE AND CLEAN ENERGY
Transportation Infrastructure $ 621 billion
Roads and Bridges $ 115 billion  
Public transit $ 85 billion  
Passenger and Freight Rail $ 80 billion  
Road safety $ 20 billion  
Electric vehicles $ 174 billion  
Airports, ports, waterways $ 42 billion  
Reconnect neighborhoods $ 20 billion  
Large projects $ 25 billion  
Resilience $ 50 billion  
Other $ 10 billion  
Water, Electricity, Broadband $ 311 billion
Drinking water $ 111 billion  
EPA state fund ($45 billion)    
Water systems ($56 billion)    
PFAS ($10 billion)    
Broadband $ 100 billion  
Electric Power $ 100 billion  
Electric grid    
Extend clean energy ITC, PTC; establish EECES    
Reclamation ($16 billion)    
Brownfield, Superfund ($5 billion)    
Carbon capture and sequestration    
Civilian Conservation Corps ($10 billion)    
Homes and Buildings $ 378 billion
Retrofit Homes and Buildings $ 213 billion  
Affordable rental housing    
NHIA tax credits ($20 billion)    
Zoning incentives    
Public housing ($40 billion)    
Clean Energy Accelerator ($27 billion)    
Education and Child Care Facilities $ 137 billion  
Public School modernization ($ 100 billion)    
Community Colleges ($ 12 billion)    
Child Care ($25 billion)    
VA Hospitals $ 18 billion  
Federal Buildings $ 10 billion  
SUBTOTAL, INFRASTRUCTURE AND CLEAN ENERGY $ 1.310 trillion
CAREGIVING ECONOMY
Expand Medicaid Home and Community-based Care $ 400 billion
INNOVATION AND R&D
Future technologies $ 180 billion
NSF $ 50 billion  
Rural, additional R&D $ 30 billion  
Research labs $ 40 billion  
Climate R&D $ 35 billion  
HBCUs/MSIs $ 25 billion  
Retool and revitalize manufacturing $ 300 billion
Commerce supply chains $ 50 billion  
Semiconductors $ 50 billion  
Medical countermeasures $ 30 billion  
Clean energy (EV, nuclear) $ 46 billion  
Regional innovation hubs $ 20 billion  
NIST $ 14 billion  
Manufacturing extension partnerships $ 2 billion  
Capital access, sec. 48C $ 52 billion  
Small business incubators $ 31 billion  
Rural Partnership program $ 5 billion  
Workforce Development $ 100 billion
Dislocated Workers program $ 40 billion  
Underserved communities $ 12 billion  
Apprenticeships, STEM $ 48 billion  
SUBTOTAL, INNOVATION AND R&D $ 580 billion
     
TOTAL $ 2.290 trillion

LABOR REFORMS

  • Enact the Protecting the Right to Organize Act
  • Apply labor standards to infrastructure, clean energy funding recipients
  • Increased penalties for workplace safety and health violations

REVENUES

  • Raise Corporate Rate to 28%
  • Increase Global Minimum Tax to 21%
  • Global agreement on minimum corporate tax
  • Limit Corporate Inversions
  • Deny Offshoring deductions, create Onshoring credit
  • Repeal Foreign Derived Intangible Income deduction
  • 15% minimum on corporate book income
  • Eliminate fossil fuel tax incentives
  • Increase corporate enforcement
    ©2020 Greenberg Traurig, LLP. All rights reserved.

    For more articles on the American Jobs Plan, visit the NLR Coronavirus News section.

COBRA Alert: Enhanced Benefits for Those Eligible

On March 11, 2021, President Biden signed into law the American Rescue Plan Act (ARPA), which provides important health insurance benefits to certain eligible individuals. Specifically, the ARPA requires employers to cover 100% of Consolidated Omnibus Budget Reconciliation Act (COBRA) premiums from April 1, 2021, through September 30, 2021, for former employees who:

  • Became COBRA-eligible in or after November 2019;
  • Lost employer-sponsored health insurance because of an involuntary termination of employment or because of an involuntary reduction in hours; and
  • (1) Elected COBRA; (2) elected COBRA but let the coverage lapse; or (3) did not elect COBRA.

Former employees are not eligible for the ARPA COBRA subsidy if they:

  • Resigned voluntarily, or voluntarily reduced their hours;
  • Were terminated for gross misconduct;
  • Are now covered under another group health plan; or
  • Are Medicare-eligible.

Note, if COBRA coverage is set to expire before September 30, 2021, ARPA does not extend the expiration date; and many questions remain. For instance, does the ARPA COBRA subsidy extend to those who left employment per a mutual decision, for “good reason” under an employment agreement, or pursuant to a voluntary exit incentive plan? The Department of Labor is currently drafting regulations and guidance that should help answer these questions.

What Do Eligible Former Employees Need To Do?

For anyone who is covered by COBRA as of April 1, 2021, nothing needs to be done. It is up to the employer or the employer’s health insurance carrier to ensure that the premiums are paid for the relevant period. For those who let COBRA lapse or had not elected COBRA, the employer or the health insurance provider must provide notice of the new benefit and of a new enrollment period. The new enrollment period begins on April 1, 2021 and ends 60 days from delivery of the ARPA COBRA notification.

If you believe you may be entitled to coverage, are interested in receiving the benefits, and are not contacted by your former employer or their provider in the next few weeks, consider reaching out to the employer’s Human Resources Department or the insurance carrier to ask for information about your COBRA benefits under ARPA, or contact your employment lawyer.

© 2020 SHERIN AND LODGEN LLP

ARTICLE BY Gavriela M. Bogin-Farber of Sherin and Lodgen LLP
For more articles on COBRA, visit the NLR Corporate & Business Organizations section.

Taking the Jump to Virtual with Jennifer Schaller, Managing Director of The National Law Review and Megan Braverman, Principal of Berbay Marketing & Public Relations [PODCAST]

What you’ll learn in this episode:

  • The pros and cons of a virtual office.
  • The biggest challenges of working remotely.
  • Transitioning your technology to a virtual “platform.”
  • Advice for firms considering going remote.
  • What to ask prospective employees to ensure they’re a fit for remote work.

Listen to Taking the Jump to Virtual, Episode 87 of the Law Firm Marketing Catalyst podcast.

Sharon:      Welcome to the Law Firm Marketing Catalyst podcast. Today, we’re talking about a timely subject which is affecting many of us, and that is working remotely. First is Jennifer Schaller who is a co-founder and the Managing Director of The National Law Review, a publication which many of you are familiar with, and Megan Braverman, Principal of Berbay Marketing & Public Relations, and I am Sharon Berman, Managing Principal of Berbay Marketing & Public Relations. So, we’ll be here from each of our desks today talking about their experiences and what they have to learn and what we can learn from them about working remotely. Jennifer, can you tell us about your experience?

Jennifer:    Sure, absolutely. We started as a remote company just simply because we were formed by a group of attorneys at different in-house law departments, so it wasn’t like most of the co-founders were leaving their regular positions working in corporate law departments. A former law firm administrator and I and a few other young attorneys actually started the more public-facing part of The National Law Review. So, it wasn’t like we had an office and we moved to remote. We were kind of a remote group to begin with and then we hired more remote people, if that makes sense.

Sharon:      Yes, it does. O.K., so you’ve been remote from the beginning. Basically, you started—

Jennifer:    Yes.

Sharon:      O.K., that’s a great way to start in terms of not having to transfer technology and think about things. Megan, can you talk a little bit how Berbay—we have just gone totally remote, but we’ve building to it for a while, so tell us about the Berbay experience.

Megan:       So, Berbay was founded in 1995 and since that date, we’ve had a physical office in Los Angeles and our most recent office we were in for just over twenty years in West L.A. It’s a long time and as you said, we were really thinking about going virtual for some time. For those that understand the L.A. world, traffic and the commutes are painful, and we really ran the agency like just get the work done; we don’t care what time you clock in and clock out and everybody really liked that and so the past few years, we would walk into the office and it felt like a bit of a ghost town. People were coming in later and leaving earlier to help avoid the commutes and traffic, and so once COVID hit, it came at an interesting time because our lease was coming due at the end of that year and so it really just propelled us into going virtual. I think in many ways it was a blessing in disguise because it really got our—we had to get our act together, whereas if COVID and the pandemic didn’t happen, I think we would have probably taken our time and maybe reluctantly gone out the door. So, we officially went virtual on February 1, 2021.

Sharon:      That’s true and when you say it would have taken a long time, I think about it because we had talked about, “Well, let’s talk again in a few months” and then it’s like, “O.K., how do we do this?” and it probably would have been five years from now if we really hadn’t been sort of forced in—well, not forced. It’s not that we didn’t want to do it, but it’s like, “O.K., we’d better get it done.” So, for both Jennifer and Megan, what did you think before you set this up? For both of you, what do you think the biggest challenges were going to be working remotely?

Jennifer:    We’ve always had a physical office space. It’s just having space for initial training and storage of conference and office supplies in Chicago. Right now, we have people in our main office Chicago and then we grew to Denver, and we have one of our tech people in Detroit. Since it’s always been mature attorneys or an office manager who has thirty years’ experience, there wasn’t the need to have the supervision of making sure people come in on time because in running a news service, we know if you’re producing work or not. It’s really more for initial training or for the purposes of picking stuff up. So really more of the remote issues that we’ve encountered along the way have been dealing with operating in different states and some of the laws relating to that.

Sharon:      Yeah, you just have to think about the fact that different states have different compliance standards to think about. Did you think when you brought on people in different locations like Seattle or Detroit, did you think, “Oh my god, how am I going to keep everybody together?” or what did you think the challenges might be?

Jennifer:    It is really, really organic. The Detroit person is one of our more technical guys and he has a tight relationship with my spouse, who actually handles the real high-level oversight of the more technical end of the website because we’re an extremely high-volume website and they’re kind of buddies. So, they handle their thing and the Denver part of it grew very organically by adding an additional tech person in Denver. We had a person who had been working with us for a while who was relocating out there for her husband’s position and so we agreed to keep her position and we’ve just found a whole little kind of hub of really good talent out there. We’re actually now starting to actively hire more towards the East Coast and bring in people in specific time zones where we might not have anybody, but the other part of it was just based on people—we try to accommodate the needs of our employees and to try to make it a win-win with the company’s goals.

Sharon:      And Megan, were there challenges that you expected or that you didn’t think about that popped up?

Megan:       Most of the challenges that we faced were expected. I mean the typical ones like—well, change is really hard, especially from a technology standpoint, so I think there are always technology issues along the way. I expected that. I knew people were going to have trouble adapting to the new system, especially when you’re used to something for so many years. I think there will be challenges to come because we’re still in the midst of a pandemic. In California, we’re pretty locked down here. I think there will be different kinds of challenges when everybody can start seeing each other again, like logistical I think is a little bit hard right now. Before, we would all be at the office and we’d jump in the car together and go see a client and I think that will be different. I think what Jennifer said—it’s like Jennifer has an office where you can kind of do some physical pickup of things. That’s all going to be remote for us and we’re going to be doing drop-offs of computers when we have a new employee and if someone leaves, picking them up and how that’s all run and handled. Those things I think are challenging. You don’t really think about all those little things as you move virtual, but those were all challenges and things you have to figure out a plan for.

I think the one challenge that—not only is it happening now, but I think it will get harder as we continue to be virtual and live in this virtual world longer, is we’re in the creative space and so there is a lot of collaboration and right now every collaboration is intentional. So before in the office, you would just say, “Hey, Sharon, can you swing over here and take a look at this? Look what do you think?” And we would sit there and have it out or I’m sure it happens the same with you, Jennifer. We sit down randomly and have brainstorm sessions and strategize. Now all of that has to be intentional. It’s more like, “Sharon, do you have twenty minutes tomorrow at 10:00 a.m. to go through this” and so it’s less of a spur of the moment and I think that that will—it can impede collaboration.

I think there are ways to combat and ensure that we’re doing the same things as we once did physically. For example, we’ve created something called Co-llab which is really just an intentional weekly meeting where we can all get together and bring things to the table. There’s no agenda. It’s just like, “Here’s my challenge” or “Hey, can you look at this ad? What do you think?” or “What about this copy” or “I’m struggling with this pitch” and we can all just bring things to the table. So, it has to be much more planful and intentional now.

Sharon:      In technology—because technology was the most daunting thing—I mean there are a lot of like you say, bugs that have to be worked out, but to me, from my perspective, it was thinking about how do we move the technology, are we in the cloud or is it a server or whatever and then also, we use Microsoft Teams in terms of collaboration. Jennifer, you are on Slack?

Jennifer:    Yeah, the technical end of it has been the easy part for us because we’re a tech-based company given the volume of publishing that we do. We publish anywhere from 65 to 85 articles a day, and that’s why we also have people in different time zones. It’s sort of challenging when we’re hiring and we’re like, “We’re publishing anywhere from six in the morning to seven at night” and interviewees are like, “I’m not working those days.” We split that up into different work teams and that concept gets kind of messy in a lot of the minds of people we interview who are working nine to five, but ultimately our clients win if we get the best results for them which means a quick turnaround on their publishing and we win because we make half of our revenue from advertising, so we have every incentive to get their content out there quickly and to do the best with it that we can. So, since we have people working in different shifts, in different time zones, all to produce news content, they have developed a great system on Slack where they talk throughout the day, figure out who’s doing what, who’s doing the social media, who’s doing the formatting of the content and the SEO work and who’s publishing it.

On the front end, we do scheduling as far as a month out on our work calendar. We have a system where; we ask folks to put their preferred hours to help fill publishing time slots during the day so we can cover the publishing cycle. Then we also have staff available on the weekends for publishing and customer service—so it’s like our road map for things. I wish I could have found something to read on how to do this, but we just kind of felt our way through it with both the scheduling of people and the timekeeping and then the daily conversations on Slack kind of evolved organically.

We have subcommittees for social media, advertising and SEO and a couple of other groups for projects and then we have regular team meetings. We usually will have a written agenda of things for our meetings that we want to go over, not that we can’t talk about different things, but in order to have a roadmap of who’s going to be covering what and what the deliverables are from the last meeting, so everybody knows they’re going to be held accountable and to have their stuff ready. So, we’ve just had to develop a lot of formalized systems but have done it through technology.

Sharon:      It’s interesting how—I’m sure you’ve hit roadblocks along the way and said, “O.K., we tried that. That wasn’t really the way to go.” You also have been able to do this over time, whereas a lot of firms are scrambling right now. Yes, there’s an aspect of scrambling, but we had a foundation of people working remotely. It wasn’t like, “Oh my gosh, what are we going to do?” It’s nice to have that luxury of trial and error and it sounds like it’s really served you well in terms of “O.K., we tried this. This is the way we want to go. Let’s go around this way.”

Megan, for firms that are considering or who are in the midst of going remotely or debating whether to revert back when get to the new normal or to go totally remote, what do you think the firm should be thinking about?

Megan:       Well, I think it’s a big decision for a lot of firms to decide what to do when things start to get back to normal. I’ve talked to so many people who have said that they love the virtual world, and their employees and the staff love the virtual world. It gives them a lot of flexibility; a better workplace balance and they can’t imagine going back. I’ve spoken to a lot of employees who have said they’re not going back. So, they’re really hoping that their employer’s going to be amenable to their request because they can’t imagine going back into the office. I’ve talked to a lot of folks that feel differently. They really believe in having that physical presence and having that office and having people there every day.

I do think that this pandemic has changed the mindset on virtual. I think there are a lot of sort of nonbelievers out there that turn believers because in their minds it was impossible. I mean there was no way that they could operate virtually, but when you’re forced to operate virtually, you realize that you can and actually there are a lot of benefits that come with it. I do think there are more believers out there. I think that that will change permanently. I think if you’re considering embarking on going virtual, even partially virtual, maybe you decide to have your employees come in twice a week or whatever it might be or downsize your offices. You just kind of share space differently. I think you really have to come up with a plan of action. To me that was so crucial when we made the decision, we were going to officially go virtual.

I did a ton of research and thought about—I mean technology is one small piece. Privacy is a big piece. For example, there are some employees who are sharing their living with a roommate or a partner and you have to think about privacy issues beyond just secure technology, but what if someone’s overhearing conversations of confidential information, but they’re living in 600 square feet, what do you do? So, there’s a lot under each umbrella. I think that plan of action includes everything from how meetings are going to work, as Jennifer went into detail about how they handle their meetings, what to do when like for example the internet isn’t working very well at home. That happens all the time. It’s amazing. It’s like no matter how much you call your internet provider, nothing happens. So, what do you do when something is the matter with your internet?

I think of all these things—first there’s a lot online. There are a lot of people who’ve done this, so talk to people who’ve done this; they can tell you their mistakes or the things that they overlooked, but a simplified plan of action of all the things we needed to be thinking about really kept us on track and made sure that we really—and we did things in phases. I think that was a big thing for us. Don’t try to tackle everything at once. We had almost a year to move out of our office. We took that time, and we did little by little by little. That was so helpful. If you try to move out of an office in a month, you are going to be scrambling.

Sharon:      I think you made some very good points about the fact that if you do it in phases. First of all, I do have to say that you were the main planner and driver of going virtual and I give you a lot of credit because it really went—it happened, and it didn’t happen with people tearing their hair out. So, I think that’s—

Megan:       Just me tearing my hair out.

Jennifer:    Your hair still looks very good.

Megan:       Thank you, thank you.

Sharon:      Jennifer, you must have seen over time a real evolution in how people view—ten years ago, you just didn’t say if you weren’t going to the office. You must have seen a real change.

Jennifer:    Well, we have one advantage. We’re the kind of business that nobody visits us, so it’s not like we’re going to have client visits. That was one thing that kind of made things a little bit easier with the whole virtual situation, but yes, perceptions have changed drastically over what it means to work from home and we work very purposely when we interview to ferret out people’s perception of what it means to work from home because being in the publishing business, there’s a lot of freelancers and there are a lot of folks who are like, “I’m just going to work when I want to work” and we try to explain the rigid schedule of news publishing, if they haven’t worked for a newspaper or a daily publication, how—no,  it’s got to be between certain hours and that there’s structure in order to produce the product that we do for our clients. But yeah, I mean initially ten years ago, there was a perception either that it was kind of two extremes, either you were like some lady who’s doing quilting in her basement or you’re like Bill Gates and you can work from the south of France and there were very few in-the-middle kinds of situations.

So yeah, it took a little bit to educate people whom we were bringing onboard on what the expectations were. I mean we’ve learned an amazing amount over the years—it’s a huge red flag if somebody says in an interview like, “How do you know if I’m working” and it’s like, “Oooh.” So, we just have figured out mostly through being exceedingly descriptive when we post jobs and then continuing through the interview process of explaining what our daily routines are, and to explain that there is some expectation of an in-person component for both work and training.

For training, we train normally pre-COVID three weeks one-on-one to get folks into the publishing process because it is pretty difficult to find people who have SEO experience and legal experience and publishing experience, we’ve yet to find the trifecta of somebody who has all those things. So, we’ve found it most effective when we train to sit down with people so we can see if, versus virtual, if their eyes are glazing over because we’re going over something that’s routine for them or if it’s a new task that they have no clue what’s going on, so we can better tailor our training and also develop rapport because we know eventually, we will be working remotely.

We have multiple people interview everybody when we hire, which some interviewees are confused by. Especially in the publishing process, it’s an all-day-long cycle of either different team members coming on and tagging in or working jointly in different parts of the publishing process. We really want a cohesive team, and we want anybody who’s joining us to know what they’re getting into and to have as many different people to talk to, to get a flavor for that. And by the same token, anybody we bring onboard, we want the full buy-in of our staff. So, the net of it is, in person when we can, monthly in-person meetings, like we do an LMA meeting and usually work together as a group in the afternoon pre-COVID. -. In-person training and then we do lots of conferences, and we try to mix up the people who are going to different events and can get to know their coworkers and their clients better.

Sharon:      That’s really nice. You have the independence and then really work to build the camaraderie among different people. Megan, what do you think? What are some of the questions or what are you looking for when you’re asking somebody about coming onboard to Berbay?

Megan:       So, we’ve only hired one staff member virtually and onboarded and trained this person virtually, so we’re fairly new to doing this and I think a lot of the questions and sort of what we’re looking for in a candidate is very similar to before. There are of course questions related to their space. Do they have a designated office space or not, and have they had experience working virtually? Would this be their first experience? How do they manage their time productivity?

It’s interesting. I found that we are working more productively, longer hours virtually than when we were in the office and there are a couple of reasons for this. I think one reason is that we’re all locked down, so there’s nothing else to do, so we just fill our time with things that we need to get done. I think that because you have a lot more flexibility, that you kind of work different hours. Sometimes you’ll work a big chunk in the morning and then you’ll take an hour or so break, eating lunch, maybe going outside and then you’re back to working. The fact that you’re able to break whenever you want during your day at the convenience of your schedule I think works really well versus when you are in the office, you are in the office. Even if there was a slow period, you were in the office.

You just kind of did what you needed to do, but I do think when you’re finding candidates, I mean you really need someone that is used to that autonomy and if they’re used to working side by side with people and they’ve never had that remote autonomous position, I think that’s going to be challenging. With that said, if they’re a very disciplined person and motivated and proactive, all the qualities that probably any company looks for, I think that a lot of people can adjust and will find—if you probably talked to anyone at Berbay including myself, we all agree that it’s just been so amazing working virtually. I mean there’s a lot less planning you have to do and that frees up your mind for other things, like for example a lot of us who go to the office, we think about meal planning: what should I make the night before so I can bring lunch in the next day or what time do I need to leave so I can get into the office on time for whatever call I have? You have to think through all those things. You have to plan them. Even your outfit, when you’re at your office, some people love to do the day before if you have a meeting. So, there are a lot of things you have to think through. I think the fact that you have more brain space now and not have to think about that makes a big difference. I know I sort of got sidetracked with the questions, but I think those are all the things that you can kind of probe a candidate for in terms of discipline, ability to be autonomous, their experience with remote work, etc.

Sharon:      No, I mean there is more brain space because you don’t have to figure out what time do I go to the gym, should I make lunch, should I pack dinner for the night before for lunch. I think the main difference—what Berbay and Jennifer are saying—and I thought that was an interesting point—is somebody in what we do, can be a freelancer in a sense. I mean they can be part of our team, but be a freelancer, where, Jennifer, you need somebody who is going to be available at certain times; it doesn’t matter if there in an office or not; they have to be available to take an assignment at a certain time and get it done at a certain time. So, that’s interesting because I think candidates who haven’t been exposed to what Jennifer is saying would have a hard time sort of wrapping their heads around the fact, “Well, I’m not a freelancer, but I’m not in an office.”

Jennifer:    Yes, it’s been challenging. We really, really, really, really try to front everything in the interview process. That makes it sound like there’s something sinister going on here. We have exceedingly talented people. Most of them have advanced degrees and have years and years of either publishing or SEO experience or editorial experience and some legal, and so to talk to interviewees and say, “Well, we kind of work in an assembly-line environment” for lack of a better way to put it because we have somebody who checks what’s coming in and then verifies that we can publish it, formats it, does the SEO work, has an editor look at it and makes it go live, does the social, does homepage placement. We kind of repeat that process for 60 to 85 articles throughout the day.

As things come in, editorial questions come in from our clients who want changes to things or just have general questions and to understand the interdependence of how to do that for 12 hours a day with different people working, it’s easy to explain it to somebody who’s worked in a news environment, but even with that, that tended to be more print, intended to be super deadline specific, we tend to publish live and cut things off at a certain time in the day. So, there’s a lot of judgment calls at the end of the day if we have things coming in still if they’re breaking news, if we publish them or wait until the next day.

So, that whole process I think is somewhat unique between having our own writers’ writing, original contributed content and then syndicating content from law firms and mixing it up into a newsfeed. That’s not super-common out there. It’s not like we can recruit people who’ve been doing the same thing at other places. There’s a learning curve and a trust curve.

Sharon:      No, I can understand that. That would be a difficult thing to find. To me, I’m still struck by having to explain these to them overnight. It’s not freelance, but you’re working virtually basically. So, Megan and Jennifer—Megan, let me start with you.  Based on your experience, what would you tell other firms who are considering going totally virtual or what would you say the benefits are? What would you do differently? What would your advice be to them?

Megan:       My advice to those that are going to go virtual, first is give yourself—however much time you think it’s going to take to really go virtual, I would double it. I think the fact that we had essentially a year to do it was incredibly beneficial and mind you, I took that year very seriously. It’s not like I started four months out. I mean I really started at the top of the year and just started chipping away at the paint because that was the only thing that my brain could actually handle getting out of this physical office and transferring technology and all of the things that had to come with it. So, I would say give yourself ample time.

I think that there are an enormous of benefits from working virtually, challenges too, but I think that there is a new meaning to the work-life balance. I think that whatever the new normal looks like, I believe that people are going to be permanently changed. Maybe everybody can’t wait to get out of their house and I’m sure a lot of people can’t wait, but at the same time, I think once we’re able to get out, I think we’re going to love the fact that we had that time at home and with our family and the quality time and we’re going to need that, and I think the virtual workplace offers that.

I would say the other piece of advice too is have someone to support you. Don’t think that you have to do this all your own. This was very a team approach of Berbay. Everybody had a role in going virtual. Every single staff member had a role in helping get to the virtual space. So, someone has to lead the charge of course, but just rely on your staff as much as possible and everything is overwhelming with change. I think just taking it day by day—I know that that’s such a simple piece of advice, but it’s really true. I think I had a realization moment where I knew that I couldn’t think too far ahead. You just think about the day, think about the week and what you’re going to achieve and over time, you’ll see how much progress you’ve made.

Sharon:      Megan, we had that year, and you had that year, but that still sounds like if you could have had more time, you would have. At the same time, if this hadn’t happened and we said, “O.K., we’re going to go virtual,” I think that five years down the line we’d still be converting. So, what do you think? Do you have an idea of what—is it a couple of years you think? What would you say?

Megan:       It’s a good question. I think it depends on the size of your company. I think that plays a big role. I mean we had one office. We were a small team. We can work leanly. There’s not a whole lot of bureaucracy, so decisions were made very quickly, very easily. So, I think depending on the size of the company, that can change. I think if you’re working with multiple offices and maybe each office is doing something different, that can be a challenge. I do think creating some kind of timeline, even if it’s over a long period of time, that’s O.K. You just have to create a timeline and really stick to it because we were forced into that timeline, but I think that it was probably one of the more beneficial motivators we had in place. It was like we had that—we couldn’t change the timeline. It wasn’t like we could say, “Well, our lease was up. We weren’t going to renew, so we had to get out of the office by February 1.” I think that’s why the timeline is so crucial, but again, I think you’ve got to rely on your staff and it’s so important. You can’t do this on your own. I talked to probably ten other employers who went virtual. I just picked their brains for 20, 30 minutes and just got the rundown of everything I needed to know, and you just get it done.

Sharon:      And you did and once again, I give you a lot of credit. Jennifer, in wrapping up, what would you like people to know? What do you think they should know about working remotely or going remote or words of wisdom?

Jennifer:    Well first of all, what a wonderful way you guys rolled it out, you had a hard deadline, but a lot of runway at the same time in order to make it happen and it’s fantastic that you pulled together as a group. One thing I can say, we were exceedingly blessed to have an extremely strong office administrator when we first started. Not only was she very experienced in the law firm world, but she was technology savvy, and you don’t always find somebody with a huge amount of experience in tech and office systems. So, we had her—thank you, Shirley—early on and actually now she works for a client of ours and came from a client of ours before.

So, I would say if you can, start out with strong parameters like having filing protocols and having systems for reporting time and requesting time off, formal systems for payroll. Just because you’re working remotely or have a small team, that stuff doesn’t go away. I think the stronger systems that you have in place like they do at larger companies makes it simpler to make that transition and then just letting team members know not only do they have input into how to change them or tweak them, but that we actually do take our team’s input and implement the changes.

Sharon:      And I think that’s a good point because I think that goes a long way in terms of pulling people together and making them feel like they’re part of something, at least knowing what the protocols are. It’s not like, “Well, I can do whatever I want. I’m floating in space. I can do whatever I want.”

Jennifer and Megan, thank you so much for talking today. I’m sure that those listening gleaned a lot of information and we gave everybody a lot to think about and I hope we didn’t scare anybody off. Thank you once again for being here. Jennifer Schaller who is the Managing Director of The National Law Review and Megan Braverman who is Principal of Berbay Marketing & Public Relations. Thank you both.

Jennifer:    Thank you.

Megan:       Thank you.

Sharon:      We hope you apply what you learned here today to propel your firm forward. If you have questions or want even more resources, go to Berbay.com and as always, thank you for listening.

© 2020 Berbay Marketing & Public Relations

ARTICLE BY Sharon Berman and Megan Braverman of Berbay Marketing & Public Relations Firm
For more articles on remote work, visit the NLR Labor & Employment section.

Time Is Money: A Quick Wage-Hour Tip on … Tracking Employee Working Time

I had planned to focus this month’s installment of “Time Is Money” on the practice of rounding timeclock entries, addressing the history behind the practice as well as factors that make rounding today a riskier proposition than it used to be.  Then, while reviewing our previous writings on the subject, I came across my colleague Mike Kun’s treatment of the topic in our July 2019 installment, where he already said pretty much everything I had to say.

Back at the drawing board, it occurred to me that rounding is part of a broader challenge that businesses face: how best to record employee working time.  Nearly every large case we handle involving non-exempt employees includes allegations that the employer hasn’t compensated workers fully for their time. Sometimes the claim is unfair rounding, other times exclusion of potentially compensable pre-shift or post-shift activity, and recently we see more employers concerned about recordkeeping in the context of remote work.

These concerns all have a common thread:  there is no risk-free way to record employee working time.  Every timekeeping system yet invented has pros and cons, with varying opportunities for cost savings or budget-breaking overruns, employee evasion, manipulation by wayward supervisors and managers, and exposure to claims in litigation that are increasingly likely to wind up as certified class or collective actions.

As with many aspects of employment law compliance, options that tend to reduce the risk of litigation also tend to cost more.  In timekeeping, that means potentially overpaying employees for their work.  And while overpaying employees can be expensive, paying lawyers—including plaintiffs’ lawyers—to address these issues in litigation can often be even more expensive.

So what’s a well-meaning, compliance-minded employer to do? Are the only choices overpaying your employees, which in many industries can put a company out of business rather quickly, or blindly trusting your employees and your supervisory staff to handle timekeeping properly, which can put an employer on a fast track to litigation?

While there are no perfect solutions, some practices have emerged that many employers see as striking an appropriate balance between cost and litigation risk:

  1. Consider eliminating rounding.

Our 2019 post covered this topic well, and we won’t restate it all here. But increasingly, employers are moving away from rounding in order to save themselves the inconvenience and expense of litigation it tends to invite.

  1. Give more thought to the number and placement of timeclocks.

Many employers with physically large workspaces, such as factories, casinos, and hotels, have employees clock in at a central location before walking several minutes to their work area.  These employees then finish their shifts and walk several minutes to clock out for the day. Several minutes a day, every day, for hundreds or thousands of workers quickly adds up to a lot of money in wages for unproductive and potentially noncompensable time.

What if the employees had the ability to clock in much closer to their work area?  Depending on the employer’s timekeeping system, this may require purchasing more time clocks, but the potential savings from not having to pay for unproductive walking time at the start and end of shifts could quickly pay for the additional time clocks.  If employees engage in compensable donning or doffing away from their work area, placing time clocks by their changing areas serve the same goal: paying for all time the law regards as compensable, while not paying for lengthy pre-shift or post-shift walking to and from the time clock.

In work environments like call centers, where the employees are normally unable to perform compensable work away from their workstation and issues arise regarding time spent booting up, logging in, and loading applications, many employers have moved toward having employees clock in and out as they enter or leave the call center floor.  That approach may result in paying employees for an extra two or three minutes on either end of the shift, but it spares employers the common allegation in lawsuits that it took employees five, ten, or even more minutes to get their computer ready at the start of the shift or to close out at the end of the day.

There is no single correct answer that fits all workplaces, but by giving some thought to how many time clocks an employer has and where to place them, there may be opportunities to make time records more accurately reflect the compensable activity the workers perform.

  1. Provide employees an avenue for reporting time worked outside of the normal routine.

Things happen that render employee time records inaccurate or incomplete. Employees forget to clock in or out. Situations arise after hours. Employees may interact with their supervisors before or after shifts. The key to achieving compliance is to be sure that the employees have—and know about—a way to correct errors or to record working time not already reflected in the timekeeping system. These corrections may involve the supervisor in the first instance, or the employee may have the ability to make changes or to include new or additional time entries directly. If your timekeeping system recognizes only those activities that occur between in-punches and out-punches, you may be failing to capture the full scope of your employees’ compensable working time.

  1. Consider requiring creation of an auditable record whenever a supervisor or manager changes an employee’s time entry.

Time shaving by supervisors and managers continues to be a common claim in litigation, often tied to the assertion that these individuals alter their workers’ time records in order to reduce or to eliminate overtime.  One important way to prevent time shaving and reduce the likelihood of such claims is to require the timekeeping system to record the identity of any person who changes a time record, along with a short statement of the reason for each change. In addition, periodic auditing of changes to time records can help identify patterns of abnormal adjustments by certain supervisors or managers.

Devoting some time and attention to these timekeeping issues can go a long way toward reducing the likelihood that you will face litigation down the road.  Once you establish practices that work best for your business, you will want to follow up with periodic training so that your non-exempt employees and their supervisors and managers clearly understand your policies and expectations.  Your compliance will very likely improve, and you will probably save money in the long run.

©2020 Epstein Becker & Green, P.C. All rights reserved.

ARTICLE BY Paul DeCamp of Epstein Becker & Green, P.C.
For more articles on tracking employee time, visit the NLR Labor & Employment section.

It’s Time Again for Employers to Ensure Handbook Compliance

It is early in 2021 and already the NLRB has before it ALJ determinations that employee handbook policies conflict with the NLRA. When analyzing employee handbook policies, the Board generally applies the Boeing test, whereby a handbook policy’s potential interference with employee rights under the NLRA is balanced against an employer’s legitimate justifications for the policy, when viewing the policy from the employee’s perspective. While the NLRA and the Boeing test apply to a number of employee handbook policies, confidentiality, social media, and solicitation/distribution policies are especially vulnerable.

Confidentiality Policies

Confidentiality policies can serve many purposes but primarily are in place as a means of protecting sensitive and proprietary information from disclosure to competitors and the general public. However, a primary function of the NLRA is to provide employees the right to disclose the terms and conditions of their employment with each other and third parties, including unions. Protected disclosures can include wage and benefit information, disciplinary history, and progress reports—information that often finds itself within the ambit of a confidentiality policy. As recent ALJ decisions have confirmed, confidentiality policies can interfere with employee rights under the NLRA when they are not sufficiently limited in scope and do not exclude from coverage employee communications and disclosures for protected purposes.

Social Media Policies

Social media policies can be useful tools to establish an employer’s expectations regarding employees’ public statements and help protect the employer’s reputation. However, the NLRA generally prohibits employers from restricting or attempting to control the content of employees’ public statements, unless such restrictions or controls tend to require adherence to basic standards of civility or serve legitimate business justifications. This year the NLRB has found that an employer’s business justifications are served by a social media policy that prohibits the sharing of general confidential information, speaking on behalf of the employer, and making disparaging statements. However, it is unclear whether the NLRB will hold course in the new political climate. As such, employers should consider adopting narrowly tailored social media policies—such as policies that prohibit unlawful conduct like discriminatory statements, defamation, and the disclosure of confidential information (defined to exclude information concerning the terms and conditions of employment)—to mitigate the risk that their policies interfere with employees’ rights under the NLRA.

Solicitation/Distribution Policies

Solicitation/distribution policies can promote employee safety and protect productivity by establishing parameters on when and where employees can solicit fellow employees for non-work related purposes or distribute non-work related literature. While these policies can reduce on-the-job distractions and contentious employee interactions, they must be carefully drafted to ensure they do not interfere with employees’ rights to engage in concerted activity protected by the NLRA.

While the NLRA does not require employers to allow employees to solicit other employees or make distributions during working time, or in active work areas, it does require employers to allow employees to engage in certain solicitations/distributions when employees are not working (for example, during break times) and in areas where work is not being performed (for example, in lunch rooms). Accordingly, employers should avoid introducing broad solicitation/distribution policies that prohibit non-work related solicitations/distributions generally, and should ensure such policies do not prohibit employees from engaging in protected solicitations/distributions during non-work time and in non-work areas. Further, employers should ensure such policies do not prohibit employees from engaging in protected solicitations/distributions in work areas when such are not active work areas.

Employee handbook policies are important tools to establish the expectations of the employer-employee relationship. However, these tools can often be used against employers if they are not carefully prepared to ensure compliance with the NLRA and the many other federal, state, and local laws that affect the employment relationship. Accordingly, employers should consider revisiting their employee handbooks with the assistance of labor and employment counsel to mitigate the risk that their employment policies conflict with applicable laws.

Copyright © 2020, Hunton Andrews Kurth LLP. All Rights Reserved.
For more articles on handbook compliance, visit the NLR Labor & Employment section.

COVID-19: An Employer’s Role in Vaccination

As cases of the 2019 novel coronavirus (COVID-19) decrease and availability of the COVID-19 vaccine becomes more prevalent, employers face the daunting task of creating safe return to work plans. These plans often involve encouraging COVID-19 vaccination and, in some cases, mandating vaccination before employees may return to in-person work.

EMPLOYERS CAN MANDATE A COVID-19 VACCINE

On Dec. 16, 2020, the Equal Employment Opportunity Commission (EEOC) issued guidance clarifying that employers are lawfully permitted to require employees to be vaccinated before returning to work, subject to several exceptions.

These exceptions include:

1. Disability considerations

EEOC guidance reiterates an employer’s obligation to accommodate employees who have disabilities that would otherwise interfere with an employee receiving the COVID-19 vaccination. Under these circumstances, an employer may have to exempt such an employee from the vaccine mandate. Examples of such disabilities could include a history of allergic reaction to vaccine ingredients, or an employee who is pregnant or nursing and has been advised against vaccination by a doctor.

Notably, the EEOC acknowledged that under these circumstances an employer may deny a disability-related accommodation where there is no available alternative that would alleviate the “direct threat” posed by an unvaccinated employee. A direct threat is one that poses a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” Employers must conduct an individualized assessment to determine whether a direct threat exists, taking into consideration:

  1. The duration of the risk
  2. The nature and severity of the potential harm
  3. The likelihood that the potential harm will occur
  4. The imminence of the potential harm

If such a threat is deemed to exist, the employer may be able to exclude the employee from the workplace but may need to provide an alternative accommodation, such as a remote work arrangement. Furthermore, because current guidance from the Centers for Disease Control and Prevention (CDC), recommends the ongoing use of personal protective equipment, health checks, masks and social distancing, employers may be able to accommodate unvaccinated employees within the workplace. As requirements for masking and distancing are lifted, the “direct threat” assessment will evolve.

2. Religious accommodations

Employees with sincerely held religious beliefs that conflict with vaccinations may also be entitled to an exemption from a mandatory vaccination policy. Like medical accommodations, an employer who knows that a sincerely held religious belief, practice or observance prevents the employee from receiving a vaccination must provide a reasonable accommodation, unless doing so would pose an “undue hardship” on the employer. Notably, having an “anti-vax” belief alone is not sufficient. The belief must be grounded in religion to qualify for protection.

Courts have defined “undue hardship” under Title VII as having more than a de minimis cost or burden on the employer. EEOC guidance explains that because the definition of religion is broad and protects beliefs, practices and observances with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. If, however, an employee requests a religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice or observance, the employer would be justified in requesting additional supporting information.

The EEOC sagely advises that managers and supervisors responsible for communicating with employees about compliance with the employer’s vaccination requirement should know how to recognize an accommodation request from an employee with a disability or sincerely held religious belief and know to whom the request should be referred for consideration.

3. Mandatory vaccination policies trigger additional obligations under the ADA and other laws

The Americans with Disabilities Act (ADA) generally restricts employers’ ability to conduct medical examinations and request medical information from employees. However, the EEOC has specific guidance that clarifies that the COVID-19 vaccination itself is not a medical examination. Employers must use caution, though, as the EEOC also states that an employer’s use of pre-screening questions that ask whether the employee has been vaccinated may inadvertently constitute a disability-related inquiry. The guidance notes that employers can avoid any issues regarding disability-related inquiries if they require employees to be vaccinated by their own medical providers or encourage, but do not require, employees to be vaccinated.

If vaccination is mandated, federal law requires that employees be paid for the time spent waiting for and receiving the vaccine. Unionized employers may also consider their collective bargaining agreements when establishing a mandatory vaccination policy.

ENCOURAGING BUT NOT REQUIRING VACCINATION

Many employers are currently encouraging but not requiring vaccinations. This is especially the case in jurisdictions where vaccinations are not available to all adults. A policy of encouragement relieves the employer of the obligation to conduct disability and religious related accommodation analyses. Nevertheless, if employers offer incentives to employees to get vaccinated, like additional paid time off, gift cards, etc., accommodations may need to be made for those employees who are not eligible for the incentive due to a disability or religious belief that prevents them for receiving the vaccine.

Notably, an employer can ask or require employees to show proof of receipt of a COVID-19 vaccination. The EEOC has clearly stated this such a request is not a disability-related inquiry subject to the ADA’s restrictions. There are many reasons why employers would seek this information as they plan for return to “normal” business practices, including re-instituting in-person meetings, travel requirements, etc. In the meantime, such information will also assist employers in addressing quarantine requirements in the case of a workplace exposure. Interim CDC guidance from March 8, 2021, makes clear that vaccinated, asymptomatic employees do not have to quarantine or test after a known exposure.

PLANNING FOR A RETURN TO IN-PERSON WORK

Whether or not an employer elects to mandate vaccines now, it is advisable for employers to communicate with their workforce on their proposed strategy and expectations with respect to vaccinations. Employers should also keep in mind that they can change their vaccination policy in the future, converting from a non-mandatory policy to a mandatory one if warranted for the particular workforce.

Copyright © 2020 Godfrey & Kahn S.C.

ARTICLE BY Margaret R. Kurlinski of Godfrey & Kahn S.C.
For more articles on COVID-19 vaccinations, visit the NLR Coronavirus News section.

NLRB Paves the Way for Graduate Student Unions

The March 15, 2021 Federal Register contained an unwelcome surprise for private colleges and universities. The National Labor Relations Board (NLRB) announced that it is withdrawing a proposed rule published last September that, if adopted, would have classified graduate students who are compensated in connection with their studies as non-employees.

The history behind the Board’s proposed “graduate student rule” is well-known. In a 2016 case captioned Columbia University, 346 NLRB No. 90, the Board ruled that graduate students are employees and therefore have the right to organize and bargain collectively. Obviously, this was a case of great significance in the higher education community.

By proposing the “graduate student rule” in September 2020, the Board sought to give blanket protection to private colleges and universities. Had the rule been adopted, these institutions could still have voluntarily recognized and bargained with graduate student unions. But, since the graduate students would have been non-employees, the colleges and universities would not have had a duty to recognize and bargain with graduate student unions.

With the rule withdrawal, the stage is set for graduate student unions

It is reasonable to expect that the withdrawal of the “graduate student rule” will reinvigorate the movement among graduate students to unionize. Indeed, graduate students at Northwestern University have already issued a statement that they expect this development to bolster their organizing efforts.

The consequences of this shift in the Board’s approach regarding higher education are potentially far-reaching. Where the duty to bargain exists, the right to strike also exists (unless the union bargains that right away at the table). The prospect of the “graduate student rule” being adopted acted like a brake on graduate students’ bargaining expectations.  Now they can be much more confident. For instance, graduate students at Columbia University who are planning to strike have lauded the decision to withdraw the “graduate student rule” and commented that it could not have come at a more opportune time.

Prepare now

Lastly, the withdrawal of the “graduate student rule” is expected to be just the first of many changes, both regulatory and legislative, aimed at strengthening unions’ ability to organize. Whether or not they are aware of this, many colleges and universities have an urgent need to assess management policies and practices, as well as campus culture, in order to prepare for possible organizing efforts.

© Steptoe & Johnson PLLC. All Rights Reserved.

ARTICLE BY John R. Merinar, Jr. of Steptoe & Johnson PLLC
For more articles on the NLRB, visit the NLR Labor & Employment section.

American Rescue Plan Act of 2021: COBRA Subsidy, Pension Funding, and Other Employee Benefit Changes

The American Rescue Plan Act of 2021 (ARPA) is the latest federal COVID-19 relief bill, which the President signed into law March 11, 2021. ARPA includes new COBRA continuation coverage election, notice, and subsidy requirements; pension plan funding relief; and some cost-saving benefit opportunities employees may be able to leverage.  Some of these changes are required and could take effect as early as April 1, 2021, requiring immediate action by employers (or their insurers or administrators).  Other provisions are optional, enabling employers to weigh the costs and benefits in considering their implementation.   This is the first of a series of articles addressing the important employee benefit changes under ARPA, including employer tax credits, executive compensation changes, and multiemployer funding relief.

COBRA Premium Subsidies:  Fulfilling a commitment of the Biden Administration, ARPA includes COBRA subsidy provisions aimed at making health insurance coverage accessible and affordable.  Bearing a striking resemblance to the American Recovery and Reinvestment Act of 2009, ARPA creates a 6-month subsidy period (April 1 to September 30, 2021) during which certain “assistance eligible individuals” (AEI) may qualify for a 100% subsidy for COBRA coverage.  Qualifying AEI would pay no cost for monthly COBRA premiums for medical, dental, or vision coverage if the individual is eligible for COBRA coverage during the subsidy period.  The subsidy period does not extend the maximum COBRA coverage period.  ARPA simply suspends the AEI’s obligation to make COBRA premium payments for up to 6 months.

These rules are not optional for employer sponsored group health plans.  All group health plans subject to COBRA, except health flexible spending accounts (FSA), must provide this subsidized coverage.

The employer, plan (in the case of a multiemployer plan), or insurer (for fully insured coverage), has an obligation to provide subsidized COBRA coverage and pay or incur the AEI’s COBRA premium cost.  But that entity may recover the cost of the coverage from the federal government by claiming a credit against its quarterly Medicare payroll tax liability.  The credit can be advanced and is refundable, meaning the entity could claim a refund if the subsidy paid exceeds the taxes due.

Only those qualified beneficiaries who trigger COBRA continuation coverage because of an involuntary termination of employment or a reduction in hours and whose current COBRA continuation coverage period would cover some or all of the subsidy period are considered AEI, but only if they elect COBRA coverage.  Individuals who qualify for COBRA because of voluntary termination, retirement, or death would not be considered AEI.

ARPA also creates an extended COBRA election period for AEI so even AEI who previously declined COBRA coverage, or whose coverage was terminated because of nonpayment of premiums, may enroll and receive the subsidized coverage for the length of the subsidy period.  This provision in particular will require careful administration to ensure compliance, given the previous COBRA deadline extensions and the recent re-starting of the clock, which we discuss here and here. ARPA does not change the fact that COBRA continuation coverage still can end because of other group health coverage, Medicare eligibility, and other circumstances.

ARPA imposes new notice requirements on group health plans, which provide AEI with the information they need to enroll in subsidized coverage.  There is a required notice of the availability of the subsidy, a notice of the extended election period for COBRA coverage, and a notice of the expiration of the subsidy.  The U.S. Department of Labor will issue model notices that plan administrators may use.

Group health plans may, but are not required to, allow AEI to enroll in different coverage options available from the employer, subject to certain conditions.  If offered, the notices would need to describe this option.

Affordable Care Act Premium Tax Credit Expansion:  Following the coverage theme noted above, ARPA also expands eligibility for Premium Tax Credits (PTCs) under Internal Revenue Code Section 36B.  These PTCs, which are part of the Affordable Care Act (ACA), make securing coverage through the Healthcare Marketplace or other state exchange more affordable.  Generally, the changes temporarily eliminate the phaseout of eligibility for households over 400% of the federal poverty level, reduce the contributions eligible households must make toward the premium cost, suspend the recapture of excess credits previously provided, and consider anyone who receives unemployment compensation during any week in 2021 as eligible.

For employers, this may mean more “full-time” employees claim the PTCs, which correspondingly may lead to greater scrutiny of employers’ ACA compliance by the IRS and a shift in employer group health plan enrollment.  This may increase the pool of individuals who qualify for subsidized coverage, a key trigger for employer shared responsibility penalties under the ACA. We recommend employers review and confirm their ACA compliance and reporting regularly to understand penalty risk and exposure, especially because of this change.

Increase in Dependent Care Assistance:  For the 2021 calendar year only, ARPA increases from $5,000 to $10,500 (from $2,500 to $5,250 in the case of a separate return filed by a married individual) the maximum amount that can be excluded from income under Section 129 of the tax code for qualifying dependent care expenses.  Employers who sponsor dependent care flexible spending arrangements may amend their plans on or before the last day of the plan year to allow their eligible employees to benefit from this increased limit.  Fiscal plan year sponsors will need to consider how to implement the relief given their plan year limits, noting that the increased contribution limit ends on December 31, 2021.  The Consolidated Appropriations Act, 2021, discussed here, permits employers to amend their Section 125 plans to permit mid-year election changes when the same normally would not be permitted.  That relief will need to be implemented in tandem with any increased limits allowed under ARPA.  For employers who decide not to increase the dependent care flexible spending account limit for 2021, employees still may qualify for the child and dependent care tax credit that was substantially enhanced and made refundable for 2021.

Pension Plan Funding Stabilization:  For employers who sponsor single employer defined benefit plans, ARPA provides several avenues to stabilize funding, including implementing 15-year (up from 7) amortization periods, fresh start rules, and an increase in interest rates used for minimum funding determinations.  These changes should reduce the minimum required contribution amounts, but would need to be weighed against the cost of obtaining an updated valuation, among other considerations.  Employers with these plans should consult with their plan actuaries.  As previously discussed, ARPA also includes long-awaited multiemployer funding relief.

If 2020 taught us anything, it is to be flexible and prepared for change.  Just three months into the 2021 calendar year, we now have the second substantial piece of legislation affecting the employee benefits area under our belts, and imminent implementation guidance.  This underscores how substantially the COVID-19 pandemic continues to change the value-proposition for employer provided benefits.

Jackson Lewis P.C. © 2020

ARTICLE BY  Suzanne G. Odom,  Kellie M. Thomas, Joy Napier-Joyce and  Brian M. Johnston of Jackson Lewis P.C.
For more articles on the American Rescue Plan, visit the NLR Labor & Employment section.