S&C COVID-19 Updates: Guidance for Employers and Employees

COVID-19: Areas of Focus

– CARES ACT
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– Executive Compensation
– Financial Services
– Labor & Employment
– Litigation & Enforcement
– M&A Transactions
– Tax Implications

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The COVID-19 pandemic is creating a host of legal and operational challenges for every workplace. To help our clients better understand their legal options as they address these issues, our Labor & Employment Group has prepared an ongoing series of S&C Memos, Podcasts and Webinars that outline and explain important employment and labor considerations unique to the COVID-19 crisis. This includes coverage of the emergency legislation enacted by Congress in response to COVID-19, including the new Families First Coronavirus Response Act; the evolving guidance being issued by various federal agencies, including the Department of Labor, EEOC, and OSHA; legal considerations for workforce restructurings caused by the pandemic; and guidance for employers who are maintaining an in person workforce and/or returning personnel to the workplace. To receive a notification whenever a new resource is added, sign up for our Legal Developments Affecting the Workplace blog. The situation is rapidly changing and we will be providing timely updates to support our clients.

Partner Contacts: Nicolas Bourtin, Catherine M. Clarkin, Jared M. Fishman, Julia M. Jordan, Marc Treviño and Benjamin H. Weiner

RECENT CLIENT GUIDANCE

COVID-19 Phase IV Stimulus Package—Key Employer Takeaways

December 31, 2020 – The Consolidated Appropriations Act, 2021 (“CAA”), signed into law on December 27, 2020, contains several provisions that may be of interest to employers. Among other things, the CAA extends and modifies the following employment-related provisions of the Coronavirus Aid, Relief, and Economic Security Act: (a) several key unemployment compensation programs; (b) the refundable Employee Retention Tax Credit; and (c) the period for repayment of deferred payroll taxes through December 31, 2021.

Read our Memo

COVID-19 Vaccine Policies—What Employers Should Know

December 18, 2020 – On December 16, 2020, the Equal Employment Opportunity Commission updated its guidance, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and other EEO Laws, to include answers to questions that specifically address COVID-19 employee vaccine policies. In short, the guidance states that employers may implement mandatory COVID-19 vaccine policies for employees as a condition to returning to, or remaining in, the workplace subject to certain exceptions. In this memorandum, we discuss the EEOC’s new COVID-19 vaccination guidance as well as certain other legal considerations for employers as they develop their workplace policies in anticipation of widespread distributions of COVID-19 vaccines in 2021.

Read our Memo

California’s OSHA Adopts Temporary, Emergency COVID-19 Regulations

Updated December 17, 2020 – On December 14, 2020, Governor Newsom issued an executive order that suspends the employee exclusion period under the Cal/OSHA emergency COVID-19 regulations if they exceed guidelines from the California Department of Public Health or local health officers. The updated memorandum summarizes the important aspects of the executive order.

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Updated: OSHA Issues Revised Enforcement Guidance on Reporting COVID-19 Cases

October 2, 2020 Update. On September 30, 2020, the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) updated its COVID-19 Frequently Asked Questions webpage to provide additional guidance on when employers should report work-related COVID-19 fatalities or in-patient hospitalizations to OSHA. This additional guidance has been incorporated into this updated post.

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Updated: California Mandates COVID-19 Supplemental Paid Sick Leave Through the End of 2020 For Employers with 500 or More Employees In the United States

September 23, 2020 Update – The California Labor Commissioner’s Office published responses to frequently asked questions regarding the COVID-19 supplemental paid sick leave available to California workers at companies with 500 or more employees nationwide. The below post has been updated to reflect this guidance.
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California Expands COVID-19 Worker Protections

September 23, 2020 – On September 17, 2020, California Governor Gavin Newsom signed two new bills as part of his worker protection package. The first, SB 1159, expands the presumption of workers’ compensation liability for COVID-19 claims. The second, AB 685, ensures timely notification to employees and local and state public health officials of COVID-19 cases at workplaces. These bills are covered in more detail below.

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Update: U.S. Department of Labor Issues New COVID-19 Guidance on
FLSA, FMLA, and FFCRA Leave

Updated September 17, 2020 – On September 16, 2020, the U.S. Department of Labor (“DOL”) published revisions and clarifications to its Temporary Rule (“Rule”) implementing the provisions of the Families First Coronavirus Response Act (“FFCRA”). Additionally, on September 11, 2020, the DOL updated its FFCRA Questions and Answers document to reflect these changes. These revisions are in response to the United States District Court for the Southern District of New York’s August ruling which vacated certain provisions of the DOL’s initial temporary rule.

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Update: U.S. Department of Labor’s Wage and Hour Division Guidance on Leave Provisions of the Families First Coronavirus Response Act

Updated September 17, 2020 – On September 16, 2020, the U.S. Department of Labor (“DOL”) published revisions and clarifications to its Temporary Rule (“Rule”) implementing the provisions of the Families First Coronavirus Response Act (“FFCRA”). Additionally, on September 11, 2020, the DOL updated its FFCRA Questions and Answers document to reflect these changes. These revisions are in response to the United States District Court for the Southern District of New York’s August ruling which vacated certain provisions of the DOL’s initial temporary rule.

Read Our Updates: Part 1, Part 2, Part 3 and Part 4

U.S. Department of Labor Issues Regulations Implementing the Families First Coronavirus Response Act’s Leave Provisions

Updated September 17, 2020 – On September 16, 2020, the U.S. Department of Labor (“DOL”) published revisions and clarifications to its Temporary Rule (“Rule”) implementing the provisions of the Families First Coronavirus Response Act (“FFCRA”). Additionally, on September 11, 2020, the DOL updated its FFCRA Questions and Answers document to reflect these changes. These revisions are in response to the United States District Court for the Southern District of New York’s August ruling which vacated certain provisions of the DOL’s initial temporary rule.

Read our Memo

San Francisco Enacts Ordinance Protecting Workers and Applicants from COVID-19-Related Adverse Actions and Discrimination.

September 16, 2020 – On September 11, 2020, San Francisco enacted the COVID-Related Employment Protections Ordinance (the “Ordinance”) to temporarily protect workers from adverse action and applicants from discrimination if they test positive for COVID-19, are isolating or quarantining, or have previously isolated or quarantined, due to COVID-19 symptoms or exposure. The Ordinance will remain in effect for 60 days, until November 10, 2020, unless it is reenacted by the San Francisco Board of Supervisors.

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California Mandates COVID-19 Supplemental Paid Sick Leave Through the End of 2020 For Employers with 500 or More Employees In the United States

September 15, 2020 – On September 9, 2020, Governor Newsom signed into law Assembly Bill No. 1867, which, among other things, provides COVID-19 supplemental paid sick leave to certain employees that are not covered by the Families First Coronavirus Response Act (the “FFCRA”). The law goes into effect immediately and requires covered employers to provide COVID-19 supplemental paid sick leave no later than September 19, 2020. The requirement will remain in effect until the latter of December 31, 2020, or the expiration of any federal extension of the Emergency Paid Sick Leave Act established by the FFCRA.

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EEOC Releases Updated Guidance to Employers Regarding ADA-Compliant Practices During the COVID-19 Crisis

September 10, 2020 – On September 8, 2020, the Equal Employment Opportunity Commission (“EEOC”) released additional updates to its technical assistance bulletin entitled, “What You Should Know About COVID 19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” The updated bulletin explains that COVID-19 testing administered by employers in accordance with current CDC guidance will meet the ADA’s “business necessity” standard and clarifies that employers may inform the workforce that employees with disabilities may request accommodations in advance of return-to-work.

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Updated: U.S. Department of Treasury and Small Business Administration Release Loan Forgiveness Applications and Instructions for Paycheck Protection Program

August 27, 2020 Update. On August 24, 2020, the Small Business Administration (“SBA”), in consultation with the U.S. Department of the Treasury (“Treasury”), published the Interim Final Rule on Treatment of Owners and Forgiveness of Certain Nonpayroll Costs, which addresses: (1) the ownership percentage that triggers the applicability of owner compensation rules for forgiveness purposes, and (2) limitations on the eligibility of certain nonpayroll costs for forgiveness. Specifically, the rule discusses the eligibility for forgiveness of nonpayroll costs attributable to a tenant (or sub-tenant), household expenses of home-based businesses, and rent and mortgage interest payments made to related parties. This interim final rule supplements the interim final rules previously posted by the SBA and discussed below. This guidance has been incorporated into this updated post.

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White House Issues Memorandum Directing FEMA to Create a COVID-19 Lost Wages Assistance Program

August 19, 2020 – On August 12, 2020, the U.S. Department of Labor released Unemployment Insurance Program Letter No. 27-20, as well as a Questions and Answers document, which together provide states with technical assistance for administering the Lost Wages Assistance program discussed in this post. Additionally, the Federal Emergency Management Agency (“FEMA”) released a webpage on the Lost Wages Assistance program, a Fact Sheet regarding payments under the Lost Wages Assistance program, and a Questions and Answers document. Among other things, this new guidance (i) provides further clarification regarding eligible claimants, the covered period, and documentation requirements; and (ii) creates an option for individuals to receive $300 weekly payments without any additional state contribution. As of August 15, 2020, Arizona, Iowa, Louisiana, and New Mexico have agreed to participate in the Lost Wages Assistance program. This guidance has been incorporated into this post.

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Coronavirus Aid, Relief, and Economic Security Act—Key Employer Takeaways

Updated August 12, 2020 – On August 8, 2020, President Trump signed a memorandum titled “Authorizing the Other Needs Assistance Program for Major Disaster Declarations Related to Coronavirus Disease 2019” (“White House Memo”). The White House Memo directs the Federal Emergency Management Agency (“FEMA”) to provide additional unemployment benefits of $400 per week to individuals currently receiving unemployment benefits due to disruptions caused by COVID-19. These additional unemployment benefits would be 75% funded by the federal government, and the White House Memo additionally “call[s] upon the States” to use funds appropriated by the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) to provide the remaining funds.

Read our Memo