By Mike O’Brien bio
The Equal Employment Opportunity Commission (EEOC) recently updated its COVID-19 guidance page, addressing a number of issues. Here are some of them:
On coronavirus testing, the EEOC said general testing administered by employers consistent with current CDC guidance will meet the ADA’s “business necessity” standard, and noted that employers should ensure that the required COVID-19 tests are accurate and reliable according to the FDA, CDC, and other public health authorities. If an employer wants to test only one employee, however, the employer should have a reasonable objective belief that he/she might have the disease. The EEOC says an employer can ask employees whether they have had contact with anyone diagnosed with COVID-19 or who may have symptoms associated with the disease, but should not phrase that question as one asking about family members.
Moreover, the EEOC says the ADA allows an employer to bar an employee from physical presence in the workplace if he/she refuses to have a temperature taken or refuses to answer questions about whether he/she has COVID-19, has symptoms associated with COVID-19, or has been tested for COVID-19.
Test and screening results are confidential, but without identifying the involved employee, an employer can give notice to others in the workplace that someone has COVID. The EEOC explains, “For example, using a generic descriptor, such as telling employees that ‘someone at this location’ or ‘someone on the fourth floor’ has COVID-19, provides notice and does not violate the ADA’s prohibition of disclosure of confidential medical information. Confidentiality must be maintained even within the home where a supervisor or HR person is remotely working, thus the EEOC says, “This means that paper notepads, laptops, or other devices should not be left where others can access the protected information.”
Allowing telework now does not mean an employer must allow it when the pandemic ends, as EEOC says, “The fact that an employer temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework for the purpose of protecting their safety from COVID-19, or otherwise chose to permit telework, does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship. These are fact-specific determinations.” Yet, EEOC also notes, “The period of providing telework because of the COVID-19 pandemic could serve as a trial period that showed whether or not [an] employee with a disability could satisfactorily perform all essential functions while working remotely.” You can read the updated guidelines here: Updated EEOC COVID-19 Guidelines.
Court strikes down new FLSA joint employer test
A New York federal court has invalidated key parts of the United States Department of Labor’s (DOL) new test for determining joint employer status for purposes of the Fair Labor Standards Act (FLSA). The new DOL test, effective as of March 2020, is available here: DOL New Joint Employer Test. The new DOL rule adopts a four-factor balancing test to determine whether the potential joint employer is directly or indirectly controlling the employee, assessing whether the potential joint employer hires or fires the employee; supervises and controls the employee’s work schedule or conditions of employment to a substantial degree; determines the employee’s rate and method of payment; and maintains the employee’s employment records.
One legal commentator has noted the court’s decision striking down the new rule only applies to “vertical” employment relationships, i.e., “where the employee has an employment relationship with one employer (typically a staffing agency, subcontractor, labor provider, or other intermediary employer) and an intermediary business contracting with that employer receives the benefit of the employee’s labor.” The court decision likely will be appealed, so stay tuned.
DOL clarifies employer FFCRA obligations
On Sept. 11, 2020, the U.S. Department of Labor (DOL) posted revisions to regulations that implemented the paid sick leave and expanded family and medical leave provisions of the Families First Coronavirus Response Act (FFCRA). (The DOL’s press release can be viewed here.) The revisions are in response to an Aug. 3, 2020 decision issued by the U.S. District Court for the Southern District of New York (State of New York v. United States Department of Labor, Case No. 1:20-cv-03020), in which the court found certain provisions of the regulations to be invalid.
The revisions to the regulations provide additional explanations related to certain requirements, including that employees may take FFCRA leave only if work would otherwise be available to them; that an employee needs employer approval to take FFCRA leave intermittently; and that employees must provide required documentation supporting their need for FFCRA leave to their employers as soon as practicable. The revisions also modify the definition of “healthcare provider” and correct an inconsistency regarding when employees may be required to provide notice of a need to take expanded family and medical leave to their employers. The revised regulations (which can be viewed here) take effect on Sept. 16, 2020.
Dealing with the social security payroll tax deferral
Late on Aug.28, 2020, the U.S. Treasury Department and the IRS finally released guidance regarding President Trump’s executive order regarding payroll tax deferral. IRS Notice 2020-65 can be found here: IRS Notice. President Trump’s order directed the Treasury to allow the employee’s portion of payroll taxes to be deferred as a boost to the U.S. economy, indicating it would give wage-earners more money to spend immediately. However, it would hit workers with a bigger tax bill next year. The guidance confirms that the payroll tax deferral only applies to individuals with wages below a bi-weekly threshold of $4,000, which translates to an annualized salary of below $104,000 per year.
Because of the delay, it is expected that few, if any, employers were able to implement the deferral beginning Sept. 1. Reports suggest that the guidance was delayed due to differences between the White House and the Treasury over who should be required to repay the deferred taxes. Those reports indicate that the White House was strongly lobbying for employers to be responsible for paying back the 6.2 percent Social Security tax. The guidance indicates that employers that implement the payroll tax deferral are responsible to pay the money back by the end of April 2021, likely doubling employees’ withholdings for payroll taxes for the period from Jan.1, 2021, through April 30, 2021.
The U.S. Chamber of Commerce said that it believes many companies won’t implement the deferral because of the difficulties administering it and the greater burden for employees next year. The Treasury/IRS guidance also does not address what employers should do if employees quit before the deferred payroll taxes are fully paid; i.e., before April 30, 2021. The guidance does indicate that employers “may make arrangements to otherwise collect the total applicable taxes from the employee,” if necessary. Payroll taxes finance Social Security. Deferred taxes would ultimately need to be paid into the Social Security trust fund.
If Congress were to decide to forgive the deferred taxes, the Social Security program would feel the additional constraint. The rapidly retiring baby-boomer population means there likely will not be enough money for the government’s obligations under the Social Security program by 2035. Hope for Congressional action to vote to forgive the payroll tax deferral, however, is diminishing. On Sept. 11 the House announced that it will not take part in President Trump’s payroll deferral.