28 Apr

April 2021 Federal HR Updates

Posted at

1:52pm

in

Congress Passes Extension of Paycheck Protection Program

Update Applicable to:
All employers utilizing or looking to utilize the Paycheck Protection Program (PPP).

What happened?
The bill pushes back the application deadline for borrowers until May 31, 2021. The bill also allows 30 additional days for the Small Business Administration (SBA) to finish processing applications received by the May 31, 2021 deadline.

What are the details?
The PPP was established to provide a direct incentive for small businesses to keep their workers on the payroll. According to the Treasury, the program is “providing small businesses with the resources they need to maintain their payroll, hire back employees who may have been laid off, and cover applicable overhead.” The bill only extends the deadline for applications; it does not increase funding.

What do employers need to do?
No action is required. It is optional for employers to apply for the PPP.

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DOL Revokes Policy Limiting Double Damages for Wage Violations

Update Applicable to:
All employers.

What happened?
The federal government announced that employers who violate the overtime or minimum wage provisions of the federal Fair Labor Standards Act (FLSA) may be liable for both the unpaid wages and an additional equal amount as liquidated damages.

What are the details?
In June 2020, after employers complained that U.S. Department of Labor (DOL) investigators began seeking these double damages inconsistently and too often during the Obama Administration, the Trump Administration issued a policy limiting investigators’ ability to seek liquidated damages in pre-litigation settlements. Under the policy, DOL Wage and Hour Division (WHD) investigators were directed to not assess liquidated damages absent clear evidence of bad faith and willfulness on the employer’s part or a history of violations by the employer. If an investigator felt that double damages were warranted, they needed approval from former WHD Administrator Cheryl Stanton and the DOL Solicitor to pursue them.

On April 9, 2021, the WHD issued a field assistance bulletin stating that, effective immediately, it is revoking the policy to give investigators greater discretion in when to seek double damages. Now, investigators can make a pre-litigation demand for liquidated damages as long as they first get approval from their regional office leader. This change in policy will not impact litigation already filed by the DOL or an employee in state or federal court.

The Field Assistance Bulletin mandating this change can be found here.

What do employers need to do?
Employers should continue to abide by overtime and minimum wage provisions as required by the applicable local and federal agencies.

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FFCRA Now Available to Medium and Small Employers

Update Applicable to:
All employers.

What happened?
In celebration of reaching 200 million vaccine doses administered, President Biden has decided to urge employers to help get even more people vaccinated. To help with this goal he has allowed medium and small employers to have access to the Families First Coronavirus Response Act (FFCRA), and all of its tax benefits related to employee leaves.

What are the details?
A paid leave tax credit will offset the cost for businesses and nonprofits with fewer than 500 employees for up to 80 hours (i.e. 10 workdays) up to $511 per day of paid sick leave offered between April 1, 2021, and September 30, 2021. This tax credit will allow these employers to provide paid leave for employees to get a COVID-19 vaccination and for any time their employees may need to recover from that vaccination at no cost to the employer. This tax credit will apply to nearly half of all private-sector employees in the United States. The Internal Revenue Service (IRS) released and posted a fact sheet to educate employers on how to claim the paid sick leave credit on their quarterly tax filings.

The White House fact sheet regarding these new practices can be found here.

What do employers need to do?
No action is required. It is optional for employers to offer and provide FFCRA leave to employees.

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OSHA Provides Vaccination Reporting Guidance

Update Applicable to:
All employers.

What happened?
The Occupational Safety and Health Administration (OSHA) recently provided guidance on the need for employers to record adverse employee reactions to the administration of a COVID-19 vaccine.

What are the details?
OSHA provided guidance in the form of a question and answer (Q&A) regarding this situation. Most employers will find themselves included in either of these two questions and answers.

Q: If I require my employees to take the COVID-19 vaccine as a condition of their employment, are adverse reactions to the vaccine recordable?

A: If you require your employees to be vaccinated as a condition of employment (i.e., for work-related reasons), then any adverse reaction to the COVID-19 vaccine is work-related. The adverse reaction is recordable if it is a new case under 29 CFR 1904.6 and meets one or more of the general recording criteria in 29 CFR 1904.7.

Q: I do not require my employees to get the COVID-19 vaccine. However, I do recommend that they receive the vaccine and may provide it to them or make arrangements for them to receive it offsite. If an employee has an adverse reaction to the vaccine, am I required to record it?

A: No. Although adverse reactions to recommended COVID-19 vaccines may be recordable under 29 CFR 1904.4(a) if the reaction is: (1) work-related, (2) a new case, and (3) meets one or more of the general recording criteria in 29 CFR 1904.7, OSHA is exercising its enforcement discretion to only require the recording of adverse effects to required vaccines at this time. Therefore, you do not need to record adverse effects from COVID-19 vaccines that you recommend, but do not require.

The full guidance can be found here.

What do employers need to do?
Employers should review the relevant information above based on their workplace practices regarding the administration of COVID-19 vaccines.

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