President Trump Signs COVID-19 Emergency Relief Bill

After an unexpected delay during which he strongly criticized the stimulus legislation passed by Congress on December 21, President Trump signed the $900 billion COVID-19 emergency relief bill into law on December 27, 2020. The new legislation aims to help individuals, businesses, and organizations across the country to offset the devastating economic effects of the COVID-19 pandemic.

Key provisions of the Emergency Relief bill include:

  • Direct payments to individuals: provides a one-time payment of $600 to individuals earning up to $75,000 per year. Couples earning up to $150,000 per year will receive $1,200. Caregivers will receive an additional $600 for each dependent child.
  • Additional Paycheck Protection Program (PPP) loans, Economic Injury Disaster Loans (EIDL), and other small business support: provides additional funds for first and second PPP loans to eligible recipients, with dedicated funds for small and minority-owned  businesses, as well as additional small business and EIDL grants.
    • Most new provisions apply to PPP loans made before, on, or after date of enactment of current stimulus bill.
    • PPP loan eligibility is expanded to include housing cooperatives, news organizations and 501(c)(6) nonprofit organizations, but publicly traded companies are specifically excluded from new PPP loan eligibility.
    • Forgivable PPP loans may be used to cover operations expenses (e.g., software, cloud computing, accounting needs), property damage due to public disturbances, supplier costs, and PPE expenditures; employer-provided group insurance benefits are included in payroll costs (e.g., group life, disability, health, vision, dental insurance).
    • Certain organizations with fewer than 300 employees may receive a second PPP loan of up to $2 million. The 60/40 cost allocation between payroll and non-payroll costs for full forgiveness will continue to apply.
    • Eligible organizations must have experienced a 25% drop in gross receipts in 2020 compared to a comparable quarter in 2019.
    • The covered period (whether an employer elects an 8-week or 24-week period) for all PPP loans is extended through 3/31/21.
    • Deductions are allowed for otherwise deductible business expenses paid for with proceeds of a PPP loan that is forgiven.
    • Recipients of PPP loans under $150,000 may utilize a simplified forgiveness request process.
    • Organizations that receive both an EIDL grant and a PPP loan need not deduct forgiven amount of EIDL grant from the forgivable amount of their PPP loan.
    • SBA is authorized to award grants to eligible live venue operators, theaters, performing arts organizations, museums, motion picture theaters, etc. to be used for payroll costs, rent, utilities, and Personal Protective Equipment (PPE).
    • Additional targeted EIDL grant funding is provided for low-income communities, and the covered period for Emergency EIDL grants is extended through 12/31/21.
  • Unemployment Assistance: provides for supplemental federal unemployment benefits and extends time periods for receiving unemployment benefits under state and federal pandemic programs.
    • Federal Pandemic Unemployment Compensation (FPUC) program will provide a supplement of $300 a week to all state and federal unemployment benefits recipients from 12/26/20 until 3/14/21.Because the legislation was not signed until 12/27/20, recipients may experience a one-week gap in benefits.
    • Pandemic Unemployment Assistance (PUA) is extended until 3/14/21, and recipients getting benefits as of that date may continue to do so through 4/5/21; maximum number of weeks of PUA benefits is increased from 39 to 50.
    • Pandemic Emergency Unemployment Compensation (PEUC) program is extended until 3/14/21, and recipients getting benefits as of that date may continue to do so through 4/5/21; maximum number of weeks of PEUC benefits is increased from 13 to 24.
    • States must develop methods to address situations in which unemployment compensation recipients refuse to accept offers of suitable work without good cause, including a method for employers to notify the state when an individual refuses employment.
  • Employee Retention Credit extended, and eligibility expanded: extends Employee Retention Tax Credit under the CARES Act through 6/30/21.
    • Tax credit rate is increased from 50% to 70% of qualified wages, and the limit on per-employee creditable wages is increased from $10,000 per year to $10,000 per quarter.
    • Eligible criteria are expanded to include employers experiencing a 20% (vs. 50%) reduction in year-over-year gross receipts and employers receiving PPP loans.
  • Payroll tax credits for FFCRA leaves extended: guarantees that employers who continue to provide paid sick and family leaves in accordance with prior FFCRA requirements will continue to receive payroll tax credits through 3/31/21. Tax credits apply as if the corresponding employer mandates were extended through 3/31/21.Note that employers are no longer required to provide FFCRA paid leaves, but the continuing tax credits provide an incentive for them to do so.
    • Employers who want to take advantage of these tax credits must follow the FFCRA leave requirements set forth in the original Act.  See our prior blogs on this issue and consult with experienced HR and legal advisors to ensure FFCRA compliance and receipt of the tax credits.
  • Extension of deferred payroll taxes: extends the repayment deadline until 12/31/21 for employers who deferred withholding of employees’ share of social security taxes. Penalties and interest on deferred unpaid tax liability will not begin to accrue until 1/1/22.
  • Extension of time for distribution of CARES Act funds: extends for one year, or until 12/31/21, the time for states and local governments to distribute Coronavirus Relief Funds previously allocated under the CARES Act.
  • Relief for transportation industry: provides funds to support transit industry including airlines, airline contractors, airports, state departments of transportation, Amtrak, and the motorcoach, school bus and ferry industries. In order to receive funds, airlines must recall involuntarily furloughed employees, provide backpay to returning employees, and guarantee minimum air transportation service.
  • COVID-19 vaccines, testing, tracing, and mitigation efforts: provides dedicated funds to procure and distribute vaccines and direct financial aid to states for testing, tracing, and COVID-19 mitigation programs, including grants designated for underserved communities; provides additional funds to support mental health, health care providers, COVID-19 research, and the Indian Health Service.
  • Emergency rental assistance: provides $25 billion for a federal emergency rental assistance program to be administered by state and local governments. Funds will be used to help eligible families struggling to pay rent, utilities, and other housing-related expenses. The CDC’s previous eviction moratorium is extended through 1/31/2021.
  • Broadband and telehealth: provides funds to increase broadband access for low-income families, tribal communities, and rural communities, and appropriates additional funding for telehealth programs.

Please note that this is not an exhaustive list of all provisions included in the Emergency Relief Bill. We encourage you to consult with your business and tax advisors about the Emergency Relief Bill and its impact on your organization and employees.

For additional and information and discussion of FFCRA and PPP loans, please see Lake Effect’s prior blogs on those topics. We will continue to closely monitor all developments in this area and provide you with important updates.

Lake Effect is here to answer your questions about federal and state pandemic relief packages affecting employers. We continue to monitor important legal and HR developments, as well as COVID-related updates from federal, state, and local authorities. Please keep watching our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

Lake Effect HR & Law is in business to maximize each client’s workplace potential with a commitment to kindness, true partnership, and exceptional service.

EEOC Updates COVID-19 Guidance to Address Vaccinations

On December 16, 2020, the EEOC updated its What You Should Know About Covid-19 and the ADA, the Rehabilitation Act, and Other EEO Laws to address COVID-19 vaccinations. The update confirms that employers may require approved COVID-19 vaccinations when they are available, but they must do so in compliance with EEO laws. Given the uncertain landscape created by the COVID-19 pandemic, the new guidance also specifies that EEO laws will not prevent employers from following applicable guidelines from the CDC or other federal, state, and local public health authorities.

Key take-aways from the EEOC’s updated guidance include the following:

  • A COVID-19 vaccination is not a “medical examination,” nor does it implicate Title II of the Genetic Information Nondiscrimination Act (GINA). (K.1, K.8) The administration of an FDA approved or authorized COVID-19 vaccine by an employer or a third-party contractor does not constitute a “medical examination” for purposes of the ADA. Administering the vaccine likewise does not implicate GINA because it does not involve the use, acquisition, or disclosure of “genetic information” under the statute.
  • Pre-vaccination medical screening questions may be “disability-related” inquiries under the ADA and could implicate GINA. (K.2, K.9) Pre-vaccination screening questions recommended by the CDC are likely to elicit information about a disability. Therefore, if an employer requires employees to receive vaccinations and administers them itself (or contracts directly with a third party to do so), it must show that pre-screening questions are “job-related and consistent with business necessity.” If an employer is administering vaccines itself, pre-vaccination questions that address or elicit genetic information could also implicate GINA.
  • Employers can provide COVID-19 vaccinations (including pre-screening questions) without meeting the ADA “job related/business necessity” standard or implicating GINA under certain circumstances. (K.2) Employers can provide vaccinations while avoiding the legal challenges involved in pre-vaccination screening questions in at least two ways:
    1. the employer can offer vaccinations to employees on a voluntary basis (where answering pre-screening questions is also voluntary, and questions do not seek genetic information); or
    2. the employer can arrange to have vaccinations administered by a third party with whom it does not have a direct contract (i.e., a pharmacy or other outside health care provider).
  • Rather than administer COVID-19 vaccinations, employers can simply recommend employees get the vaccine and then request or require proof that an employee received a COVID-19 vaccination. (K.3) An employer who requests or requires proof of a COVID-19 vaccination is not likely to elicit information about a disability, and the request therefore is not a prohibited “disability-related” inquiry under the ADA. However, the employer should avoid any follow-up questions and caution employees against providing any medical information beyond proof of vaccination.
  • Employers should assess whether an employee with a disability who cannot take a required COVID-19 vaccine poses a direct threat at the worksite. (K.5, K.7) If an employee cannot receive a required COVID-19 vaccine due to a disability, the employer must assess whether that unvaccinated employee poses a “direct threat” at the worksite under the ADA. That assessment must consider four factors:
    1. the duration of the risk;
    2. the nature and severity of the potential harm;
    3. the likelihood that the potential harm will occur; and
    4. the imminence of the potential harm.
  • If an unvaccinated employee with a disability poses a direct threat, the employer must then explore whether reasonable accommodations could eliminate or reduce that threat. (K.5) Employers can rely on CDC recommendations and OSHA guidance to assess potential accommodations. If the direct threat cannot be reduced to an acceptable level, the employer can prohibit the employee from physically entering the worksite. However, the employer may not automatically terminate that employee. Rather, the employer should consider remote work or other off-site arrangements for the unvaccinated employee.
  • Employers must try to accommodate employees who cannot take a required COVID-19 vaccine because of a sincerely held religious belief. (K.6, K.7) If an employer learns that an employee’s religious beliefs prevent them from taking a required COVID-19 vaccine, it must attempt to accommodate that employee if it can do so without undue hardship. If there is no reasonable accommodation possible, the employer may exclude the unvaccinated employee from the worksite. Again, however, this does not mean that the employer may automatically terminate that employee. Rather, the employer should explore other work arrangements and the implications of other federal, state and local EEO laws.

Based upon current EEOC guidance, employers in most industries can alleviate administrative burdens, minimize legal exposure, and best achieve a vaccinated workforce by strongly recommending that employees obtain a COVID-19 vaccine or by providing vaccinations administered by an unrelated third-party healthcare provider. Employers can also lawfully request or require proof of vaccination without collecting any other private health information about their employees.

For additional and information and discussion of COVID-19 vaccinations and what they mean for employers, please see Lake Effect’s prior blog on vaccines.  We will continue to closely monitor all developments in this area and provide you with important updates.

Dane County Public Health Emergency Order #11

Public Health Madison & Dane County (PHMDC) has issued a new public health order, Emergency Order #11, effective Wednesday, December 16, 2020. The primary changes are the loosened restrictions on mass gatherings.

Revised Definition. A mass gathering is now defined as “a planned event such as a concert, festival, meeting, training, conference, performance, show, sporting event, or party. Individuals that are members of the same household or living unit do not count towards the Mass Gathering numbers in their own household or living unit.”

Indoor Gatherings. Indoor mass gatherings are permitted with up to 10 individuals, not including employees or members of the same household. Individuals must maintain face coverings and 6-foot physical distancing.

Outdoor Gatherings. Outdoor mass gatherings are permitted with up to 25 individuals, not including employees or members of the same household. Individuals must maintain physical distancing.

Restaurants. The restriction that no more than six people can be seated at one table has been removed but all individuals at a table must be members of the same household.

Sports, Group Exercise Classes, Meetings, Trainings, and Other Gatherings. Employers should note that the new, loosened mass gathering restrictions set forth above apply to sports, group exercise classes, meetings, trainings, and other gatherings. There are no new restrictions on these activities. For example, indoor low-risk sports may be played with 10 or fewer individuals and maintaining face coverings and 6-foot physical distancing, and outdoor sports may be played with 25 or fewer individuals and maintaining 6-foot physical distancing.

See also this PHMDC reference comparing Order 11 to the previous Order 10.

PHMDC also removed the provisions of its previous emergency order requiring schools be closed to in-person instruction until certain metrics were met, which are currently under review by the Wisconsin Supreme Court. These provisions had been ruled unenforceable under a temporary Wisconsin Supreme Court order.

The other requirements from previous PHMDC emergency orders remain in place. You can find Lake Effect’s summaries of the previous orders here.

COVID-19 vaccines on the horizon: What does it mean for employers?

On December 10, 2020, a Food and Drug Administration (FDA) advisory committee will meet to review Pfizer’s COVID-19 vaccine and recommend whether to authorize its emergency use in the United States. Moderna is also seeking FDA Emergency Use Authorization (EUA) for its COVID-19 vaccine, and dozens of other pharmaceutical companies are in the process of developing and seeking approval for vaccines. As the country awaits word on FDA authorizations, governmental bodies and other organizations are preparing for the complexities involved in distributing a COVID-19 vaccine and prioritizing who will receive the first doses.

No doubt, many employers welcome the prospect of a safe and effective COVID-19 vaccine in hopes that remote employees can return to the workplace and safely resume serving clients, customers, and partners. However, this scenario assumes that most employees will get a COVID-19 vaccine when it becomes available. It also raises a difficult question: Can an employer require employees to get a COVID-19 vaccine as a condition of continued employment?

Current FDA guidance:
Federal and state authorities have not directly answered this question. A member of the FDA advisory panel recently stated that vaccines authorized under the FDA’s EUA (as opposed to through the normal approval process) cannot be mandated. This is consistent with 2017 FDA guidance stating that recipients of EUA products must be informed that they have the option to accept or refuse the product and what the consequences of refusal may be. However, there is some dispute as to whether the FDA’s prior position on this issue would control if the Secretary of Health and Human Services adopts a contrary position as to EUA COVID-19 vaccines.

Current EEOC guidance:
Even if initially authorized under an EUA, COVID-19 vaccines will likely be approved through the FDA’s normal approval process in the near future. Employers will then face the same question: can they require employee vaccinations? Current EEOC guidance on Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, updated in March 2020, considers the issue in the context of the influenza vaccine (specifically recognizing that there was no vaccine for COVID-19 at that time). In the case of the influenza vaccine, the EEOC guidance states that “employers should consider simply encouraging employees to get the [vaccine] rather than requiring them to take it.”

Required accommodations:
However, the EEOC guidance also suggests that a mandatory vaccination requirement (influenza, COVID-19, or otherwise) for all employees is permissible as long as employers make exceptions in two instances:

  1. to provide a reasonable accommodation to an employee with an ADA-covered disability that prevents them from taking a vaccine; and
  2. to provide a reasonable accommodation to an employee with a sincerely held religious belief, practice, or observance that prevents them from taking the vaccine, as required under Title VII.

Presumably, reasonable accommodations in lieu of a mandatory COVID-19 vaccine could include permitting telework, increased use of PPE for the employee and co-workers, modification of job duties (i.e., removing public interactions), or transfer to a different office space. In any case, providing an employee accommodation must not cause an undue hardship to the employer. Because COVID-19 is so easily transmitted, and because the EEOC recognizes it as a pandemic and a “direct threat” to employee safety under the ADA (as does OSHA), employers might be granted greater latitude in difficult accommodation cases.

Other considerations:

Although a mandatory COVID-19 vaccination policy may be permissible under current law, this should not end the inquiry for employers seeking to maximize their workforce potential during these challenging times. Beyond its legality, an employer should determine whether implementing a mandatory vaccination policy is necessary or even advisable based upon the nature, needs, and unique culture of its organization. Relevant considerations may include:

  • The frequency and duration of employee interactions with vulnerable populations and/or members of the general public (how critical are employee inoculations to the survival and success of the business?)
  • Cost(s) associated with a mandatory employee vaccination policy/program (time, expense, goodwill of the public and employees)
  • The impact of existing policies, collective bargaining agreements, or past practices on the introduction of a mandatory vaccination policy
  • The potential impact of a mandatory vaccination policy on workplace injury and safety claims
  • The logistics required to administer a mandatory vaccination policy/program on or off-site (including necessary forms, a clear process for requesting accommodations, and protocols for retaining confidential vaccination information; staggering vaccinations may also be required as potential side-effects could render employees unable to work for several days)
  • The availability, cost, and efficacy of other mitigation measures used to prevent the spread of COVID-19 (including an assessment of the measures used to date)
  • Alternative ways to encourage and incentivize employees to voluntarily get the COVID-19 vaccine (i.e., rewarding employees who get the vaccine with added benefits under a wellness program)

Employers should also consider conducting surveys to gather employee feedback before formulating a COVID-19 vaccination policy. Some employees may have specific safety concerns about the FDA’s approval process for new COVID-19 vaccines. Other employees may be skeptical about the medical community or generally concerned about vaccines based upon historical events or personal experiences. Inviting employees to express opinions and concerns can build trust and enhance employee morale. It can also inform an employer’s decision-making and communication strategy as it prepares to welcome more employees back to the workplace, regardless of whether or not an employer adopts any COVID-19 vaccination policy. If an employer decides to proceed with a mandatory vaccine policy, communicating with employees and other stakeholders about the underlying rationale and implementation would be a critical next step.

Stay tuned:
Given the current legal landscape, employers can begin planning the most effective ways to protect their employees and the general public when a COVID-19 vaccine becomes widely available. However, it is entirely possible that we will see new guidance on mandatory vaccinations from federal and/or state authorities after the FDA completes its authorization process.

Lake Effect will continue to closely monitor all developments in this area and provide you with important updates.

Lake Effect is here to answer your questions about protecting your workforce and business consistent with state and federal law. We continue to monitor important legal and HR developments, including COVID-related updates from federal, state, and local authorities. Please keep watching our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

CDC Updates Guidance on COVID-19 Quarantine

On December 2, 2020, the Centers for Disease Control and Prevention (CDC) updated its guidance on how long a person should quarantine after exposure to someone with COVID-19. “Quarantine” keeps someone who has been in close contact with a known COVID-19 case away from others to prevent the spread of the virus.

The CDC’s current recommendation is that an exposed individual should quarantine for 14 days after last exposure. The CDC continues to endorse its existing 14-day quarantine recommendation. However, the CDC’s new guidance recognizes that reducing the length of quarantine in some instances may make it easier for people to quarantine by reducing economic hardship if they cannot work during that time. A shorter quarantine period may also reduce stress on the public health system.
Under its new guidance, the CDC provides two additional, abbreviated options for the length of quarantine. Assuming a person does not develop any symptoms of the virus:

  • Quarantine may end on the 10th day after exposure without testing
  • Quarantine may end on the 7th day after exposure with the receipt of a negative test result

After ending quarantine under either abbreviated option, a person should continue to monitor for COVID-19 symptoms until 14 days after exposure, wear a mask, stay 6 feet away from others, and take other recommended mitigation measures. If symptoms develop at any time, the person should immediately self-isolate.

Finally, the CDC guidance reaffirms that local public health authorities make final decisions about how long quarantines should last in their respective communities, based on local conditions and needs. Businesses and organizations should thus be aware of the CDC’s updated guidance, but they should continue to follow the specific quarantine recommendations of their local health departments.

Lake Effect is here to answer your questions about protecting your workforce and complying with CDC guidelines, state, and local public health orders. We continue to monitor important legal and HR developments, including COVID-related updates from federal, state, and local authorities. Please keep watching our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

‘Tis the Season

This year has taught us lessons we could not have imagined a year ago: lessons on time management, work-life integration, and overcoming professional and personal hurdles. Even in the best of times, the end of the calendar year can be extremely busy for many organizations. For individuals, this time of year also brings hectic schedules and other stressors, both emotional and financial. Additional challenges presented by the pandemic, social unrest, and the recent contentious election will likely make December 2020 a uniquely difficult time.

As we head into this month, we encourage you to take a step back and think about what you expect from your teams, and what you can offer them in return.

  • As more organizations continue with a remote work force, it becomes easy to assume someone is available and checking in at all hours of the day. Learn to respect employees’ off-hours by honoring their boundaries and implementing strategies that allow them to disengage and focus on other aspects of their busy lives:
    • Empower employees to honor their own boundaries by committing to not working during their off hours.
    • Set clear expectations for employees and supervisors about work hours and non-work hours and encourage all to respect these times.
      Encourage employees to use their “out of office” messages in email or voice mail during non-working hours.
    • Consider whether your emails to staff who are on vacation need to be sent immediately. Does the email involve an issue that can wait until they return to work? Even if you don’t expect them to respond to you at that time, sending a message during non-working hours can have a negative effect on employees trying to disengage.
    • Use the Delay Delivery option on email. This tool allows you to draft a message while it is fresh in your mind but delays an employee’s receipt of that email until they resume work hours.
    • Make sure your non-exempt employees and their managers understand that all work time – even checking and responding to quick emails at night – is work time that must be tracked and compensated.
  • Think about other ways you can support your employees individually and collectively at this time:
    • If your benefits plan comes with an Employee Assistance Program (EAP), now is a good time to share the information again with employees to remind them of the services that are available to them. If employees do not have access to an EAP, consider partnering with local non-profit agencies that may be able to provide different resources and support. For example, United Way 2-1-1 is a national hotline that connects people with resources in their own communities and is available 24 hours a day, 7 days a week.
    • Does your organizational have a culture that encourages mental and physical wellness? Consider organizing a challenge to incentivize self-care or arrange for group exercise times.
    • Coordinate fun group activities such as cookie recipe exchanges, secret gift exchanges, or donations to a non-profit your organization supports.
  • Show support for your employees in tangible and intangible ways:
    • If your organization has a budget for it, consider sending a “Thank you for getting us through 2020” gift, gift card, or bonus with a personal message written to each employee.
    • Surprise employees with an extra half day off one afternoon; encourage them to take the time to do something nice for themselves.
    • Check in with your employees individually; ask them “Are you OK?” and mean it. Listen to their concerns.

By necessity, you spend most workdays focused on the needs of your organization, clients, and other stakeholders. This month, we encourage you to take some time to focus on your employees, one of your most important assets. It’s been a hard year for so many. Let’s grant each other some grace to finish out the year strong, and together we can welcome 2021 with renewed strength.

Lake Effect HR & Law, LLC
(844) 333-5253 (LAKE)
info@le-hrlaw.com

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