Labor & Employment Insights — Lindabury, McCormick, Estabrook & Cooper, P.C. Firm News & Events

Employers Covered by the FFCRA Must Post the DOL’s Employee Rights Poster in the Workplace and Should Issue a Copy of the Poster to Employees

Published on: May 29, 2020 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

In response to the COVID-19 public health emergency, Congress passed the Families First Coronavirus Response Act (the “FFCRA”) requiring employers with 500 or less employees to provide paid sick leave and paid family leave to qualified employees affected by the pandemic. These benefits are in addition to any other earned sick leave, vacation or other paid time off benefits offered by the employer. These additional benefits are temporary and are only available to employees through December 31, 2020.

Posting requirement: Now that employers are preparing for employees to return to the workplace, employers covered by the FFCRA must prominently display the U.S. Department of Labor’s poster entitled Employee Rights – Paid Sick Leave and Expanded Family and Medical Leave under the Families First Coronavirus Response Act, a copy of which can be found here.

Distribution of Employee Rights publication: Both the federal and state governments are encouraging employers to continue to permit employees to work remotely to reduce the headcount in the workplace and potential spread of the virus. Covered employers who plan to continue remote work arrangements should therefore distribute the DOL’s Employee Rights publication to these employees, if not to all employees, to ensure employee awareness of leave rights under the FFCRA.

The DOL Issues New Rule Regarding Electronic Disclosure Safe Harbor for Retirement Plans

Published on: May 28, 2020 | by James K. Estabrook and Elizabeth Engert Manzo

On May 21, 2020, the U.S. Department of Labor (“DOL”) announced a final rule allowing employers to post retirement plan disclosures online or furnish them to workers via email. The rule is aimed at reducing administrative expenses for employers and making information more readily available to workers.

ERISA-covered retirement plans must furnish multiple disclosures each year to participants and beneficiaries. The exact number of disclosures per year depends on the specific type of retirement plan, its features, and in some cases the plan’s funding status. To deliver these disclosures electronically, plan administrators were previously required to comply with the regulatory safe harbor established in 2002 under 29 CFR 2520.104b-1(c), which required that disclosures be reasonably calculated to ensure that workers actually received the information, including confirmation that the transmitted information was actually received (e.g., using return-receipt or notice of undelivered electronic mail features, conducting periodic reviews or surveys to confirm receipt of the transmitted information).

On August 31, 2018, Executive Order 13847, entitled Strengthening Retirement Security in America, was issued. The Order directed the DOL to review whether regulatory or other actions could be taken to make retirement plan disclosures more understandable for participants and beneficiaries and to focus on reducing the production and distribution costs that retirement plan disclosures impose on employers. In October 2019, the Department published a proposed regulation with a solicitation for public comment. In response to the commentary received, a final rule creating a new voluntary safe harbor was established. The new safe harbor permits the following two optional methods for electronic delivery:

Get Back to Work! Guidance for Reopening the Workplace after Stay at Home Orders are Lifted

Published on: May 13, 2020 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

I. When Can America Go Back To Work?

As employers and employees increasingly chafe at the bit to return to the workplace, businesses must look to state and local stay-at-home directives to determine when they can reopen. It is anticipated that this will occur in phases and will likely depend on the nature of the business and jurisdiction where it is located.

New Jersey: New Jersey’s Stay-At-Home order was initially expected to expire on May 8, 2020. Although Governor Murphy has permitted state and county parks and golf courses to reopen on May 2, 2020, the Governor announced that the stay-at-home directive will remain in place indefinitely until the following six principals in his plan entitled The Road Back are sufficiently met:

The DOL Releases Updated Model COBRA Notices To Address Medicare Eligibility and Expands COBRA Deadlines

Published on: May 7, 2020 | by James K. Estabrook and Elizabeth Engert Manzo

The Department of Labor (“DOL”) and other federal agencies released updated model COBRA notices and expanded COBRA deadlines in an effort to reduce the risk of participants and beneficiaries losing benefits during the COVID-19 pandemic.

Updated Model COBRA Notices

Under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), an individual who was covered by a group health plan on the day before the occurrence of a qualification event, i.e. termination of employment or a reduction in hours that results in loss of coverage under the plan, may be able to elect COBRA continuation coverage upon that qualifying event. Under COBRA, group health plans must provide covered employees and their families certain notices explaining their COBRA rights. The first is a written notice of COBRA rights, called a “general notice,” which is given to an employee and spouse at the time of commencement of coverage. A group health plan must also provide an employee and spouse with an “election notice” upon a qualifying event, which outlines how to make an election under COBRA continuation coverage. The DOL has created model notices, which plans can use to satisfy these requirements under COBRA.

Second Chance at Paycheck Protection Program Loan: An Overview of Program Application and Loan Forgiveness Requirements

Published on: May 5, 2020 | by James K. Estabrook and Elizabeth Engert Manzo

The Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), signed into law on Friday March 27, 2020, introduced the Paycheck Protection Program (the “PPP”) with the intended goal of preventing job loss and small businesses failure due to losses caused by the COVID-19 pandemic. The PPP was designed to support small business and employees by providing forgivable loans to employers if they maintained their employees and payroll. It was initially funded with $349 billion on a first come, first serve basis. Initial applications from small businesses and sole proprietorships opened on April 3, 2020 and all of this initial funding was exhausted within 13 days, or by April 15, 2020.

On Tuesday, April 21, 2020, the Senate passed an “interim” coronavirus relief Bill, titled the “Paycheck Protection Program and Health Care Enhancement Act” (the Senate Bill). The Senate Bill amends the CARES Act to (i) increase the amounts authorized for the PPP in accordance with Section 7(a) of the Small Business Act, increase the Economic Injury Disaster Loans (EIDL loans), and increase emergency grants under the CARES Act, and (ii) authorize additional funding for hospital and provider recovery and

coronavirus testing.

Scenarios For COVID-19 Related Leave in New York

Published on: May 5, 2020 | by James K. Estabrook and Elizabeth Engert Manzo

As part of Lindabury’s work with the Mechanical Contractors Association of New York, James Estabrook and Elizabeth Engret Manzo have authored guidance on COVID-19 related leave under New York state law.

You can download a copy of the guidance here.

New Jersey Delays Effective Date of WARN Act Amendments and Extends the Exemption for Layoffs Due to Disasters and National Emergencies

Published on: April 17, 2020 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

Since the onslaught of layoffs and furloughs caused by the COVID-19 crisis, many employers found themselves caught in the crosshairs of the onerous severance and notice obligations imposed by the January 2020 Amendments to New Jersey’s Millville Dallas Airmotive Plant Job Loss Notification Act (“NJ WARN Act”), slated to go into effect on July 19, 2020.

To alleviate the consequences for businesses already struggling with the effects of the pandemic, on April 14, 2020 Governor Murphy signed into law a bill that delays the effective date of the NJ WARN Act amendments until 90 days after the lifting of the COVID-19 state of emergency, currently expected to expire on July 7, 2020. Unless the Governor extends the state of emergency to a later date, the NJ WARN Act amendments will not go into effect until October 5, 2020. The new law is effective immediately and is retroactive to March 9, 2020.

As we discussed in a prior publication, the NJ WARN Act was amended to significantly expand employee rights in the event of a plant closure or mass layoff. Among other things, the amendments

When an Employee Needs Leave Under the FFCRA, What Documentation Does the Employer Require to Receive Tax Credits?

Published on: April 7, 2020 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

Our employee says they need Paid Leave under the FFCRA. What documentation can the company require from the employee to ensure these payments qualify for employer tax credits?

Under the Families First Coronavirus Protection Act (FFRCA), employers are eligible for tax credits for any payment of qualified Emergency Sick Leave or Emergency Family and Medical Leave benefits mandated by the new law. Going forward, employers must be sure to require and maintain appropriate documentation from employees requesting leave to substantiate to the IRS that the employer credit is warranted. Additional information about what constitutes a “qualified” use of Emergency Sick Leave or Emergency Family and Medical Leave can be found here.

Eligible employers are entitled to retain a 100% credit for the payment of all qualified sick leave and family leave wages, plus allocable qualified health plan expenses and the employer’s share of Medicare taxes, rather than depositing them with the IRS. Employers must retain records and documentation related to and supporting each employee’s leave to substantiate the claim for the credits, and retain the Forms 941, Employer’s Quarterly Federal Tax Return, and 7200, Advance of Employer Credits Due To COVID-19, and any other applicable filings made to the IRS requesting the credit.

Administering COVID-19 Relief – Guidance for Employers: Fact Sheets, FAQs and Q&As from Federal Agencies

Published on: April 2, 2020 | by John H. Schmidt, Jr. and Lindabury, McCormick, Estabrook & Cooper, P.C.

The speed in which the Congress and various federal agencies have acted in response to the coronavirus outbreak has caused confusion among employers about what they must do to comply with these new laws and regulations. To assist employers we have compiled a list of fact sheets, Q&As and FAQs produced by several governmental agencies that will hopefully provide some clarity.

As always, you can contact Lindabury’s Labor & Employment group with any questions you may have.

US DOL Employee Rights Under the FFCRA poster required to be posted by employers: The FFCRA mandates that employers prominently display this poster in the workplace by April 1, 2020. The poster can be downloaded here.

New Jersey Expands Earned Sick Leave, Family Leave, and Temporary Disability Benefits in light of the Coronavirus Pandemic

Published on: April 2, 2020 | by Lisa Gingeleskie

On March 26, 2020, Governor Murphy signed into law S-2304 expanding the scope of the New Jersey Earned Sick Leave Law, the New Jersey Family Leave Act, and the New Jersey Temporary Disability Benefits Law to broaden benefits available to employees who are absent from work due to epidemics such as the coronavirus (COVID-19) pandemic. These changes, as set forth more fully below, became effective immediately.

New Jersey Earned Sick Leave Law

Under New Jersey’s Earned Sick Leave Law, employees may use earned sick leave for absences related to, among other reasons, the closure of the “employee’s workplace, or the school or place of care of a child of the employee, by order of a public official due to an epidemic or other public health emergency, or because of the issuance by a public health authority of a determination that the presence in the community of the employee, or a member of the employee’s family in need of care by the employee, would jeopardize the health of others”.