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

Reopening the Household Following COVID-19

Published on: August 6, 2020 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

The COVID-19 pandemic has interrupted households and working families everywhere. As states begin to reopen, employers across the country are constructing return to the workplace plans that incorporate changes to physical and behavior protocols within their buildings and office space. As employees look to reenter the workplace, many working parents are faced with a similar issue – how to safely reopen the home to household employees, including nannies, tutors, dog walkers, cleaning staff, etc.

Whether you’re welcoming back a former employee, or hiring someone new, it is imperative that you construct a thoughtful return to work plan for those reentering your household. While an open and honest conversation about these challenges is a good starting point, the best source of protection is a written agreement between the parties, which formalizes expectations and eliminates areas of question down the road. Your “return to the household” plan or contract should take into account the following principles:

Disinfecting and cleaning measures;

IRS Announces Additional Guidance for Coronavirus-Related Distributions and Loans

Published on: June 29, 2020 | by James K. Estabrook and Elizabeth Engert Manzo

On June 19, 2020, the IRS released Notice 2020-50, which provides additional guidance and relief for retirement plan participants taking coronavirus-related distributions and loans under the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”). Under the CARES Act, “qualified individuals” may take coronavirus-related distributions of up to $100,000 from their eligible retirement plans without being subject to the 10% additional tax on early distributions. In addition, a coronavirus-related distribution can be included in income ratably over the three-year period commencing with the year of distribution and the individual taking the distribution has three years to repay the distribution to the plan, or roll it over to an Individual Retirement Account (“IRA”) or other qualified retirement plan, with the effect of reversing the income tax consequences of the distribution. In addition, the CARES Act allows plans to suspend loan repayments due from March 27, 2020 through December 31, 2020 and further allows for an increase in the dollar amount on loans made between March 27, 2020 and September 22, 2020 from $50,000 to $100,000. Notice 2020-50 expands the definition of qualified individuals under the Act and provides additional, clarifying guidance regarding coronavirus-related distributions and loans.

Expansion of the Definition of “Qualified Individual”

Under the original language of the CARES Act, a qualified individual included the following persons:

Kathleen M. Connelly Featured in ROI-NJ Article Titled ‘Panel: 1st Day Back in Office Should be about Education, Not Production’

Published on: June 11, 2020 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

Lindabury partner Kathleen M. Connelly of the firm’s Employment Law group discussed with ROI-NJ the question her clients have been asking most in regard to office reopenings, which is how to deal with employees who are reluctant to return to work due to a generalized fear of COVID contraction. While employees returning to the workplace continue to have significant leave protection for COVID and non-COVID absences through December of 2020, employees can still be terminated if they refuse to return to work, and there are certain ways employers can communicate and accommodate their staff, which is also outlined in the article.

You can read the entire transcript here.

The Paycheck Protection Program Flexibility Act Makes Critical Changes to the Paycheck Protection Program

Published on: June 9, 2020 | by James K. Estabrook

On June 5, 2020, the Paycheck Protection Program Flexibility Act of 2020 (“PPPFA”) was signed into law. The PPPFA is aimed at providing borrowers with additional flexibility to maximize forgiveness of loans received under the Paycheck Protection Program (“PPP”) established as part of the CARES Act. The following provisions of the PPPFA are highlighted below for your consideration:

Extension of Application Period: The PPPFA extends the final date by which PPP loans can be made from June 30, 2020 to December 31, 2020. However, a congressional letter clarifies that June 30, 2020 remains the last day for accepting and approving PPP loans. Although additional guidance may be issued on whether applications will be accepted until December 31, 2020, employers should err on the side of caution and apply for loans prior to June 30, 2020.
Repayment Term is Extended: For those PPP loans originated on or after the date of enactment of the PPPFA, the repayment term for the unforgiven portion of the loan is extended from two to not less than five years. However, borrowers and lenders may mutually agree to expand the repayment period under existing loans (entered into prior to enactment of the PPPFA).

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.