The Employer E-Letter: Labor and Employment Law News
from the Duluth, Minnesota law firm of
Hanft Fride, A Professional Association.
Co-Editors, Scott A. Witty, saw@hanftlaw.com and Richard R. Burns, rrb@hanftlaw.com, or 218.722.4766. Please feel free to forward this e-mail or share it with others. If there are other topics of interest to you or any other suggestions concerning this newsletter, please let us know.
This Month’s Topics:
- MN EMPLOYERS NO LONGER SUBJECT TO WORK-FROM-HOME REQUIREMENT
- AMERICAN RESCUE PLAN ACT OF 2021 EXPANDS TAX CREDITS FOR EMPLOYEES TAKING QUALIFYING COVID-19 RELATED LEAVE
- NEW SECRETARY OF LABOR AND CHANGES AT THE NATIONAL LABOR RELATIONS BOARD (NLRB)
- US DEPARTMENT OF LABOR ENDS PROGRAM ALLOWING EMPLOYERS TO SELF-REPORT FLSA VIOLATIONS
- Tip Of The Month
MN EMPLOYERS NO LONGER SUBJECT TO WORK-FROM-HOME REQUIREMENT
Just shy of one year ago, Minnesota Governor Tim Walz issued Executive Order 20-20, which required employees that were able to work from home to do so. On March 12, 2021, Governor Walz signed Executive Order 21-11, which lifts the work-from-home mandate effective April 14, 2021. The Executive Order maintains, however, that employers are “strongly encouraged” to allow employees who can work from home to continue to do so, as well as requiring implementation of reasonable accommodations for at-risk employees or employees that live with individuals who have underlying medical conditions and have not been vaccinated. Executive Order 21-11 also reminds employers that will be inviting employees back to the workplace that certain safety restrictions remain in effect. Those include the statewide mask mandate, social distancing and safe hygiene practices and the requirement for all businesses to have a COVID-19 Preparedness Plan. Employers are further reminded that the Department of Labor and Industry has authority to penalize businesses that retaliate against employees who raise safe workplace and health concerns. Notwithstanding such warnings, the Governor’s Order is a significant step, albeit the first of many needed, toward normalcy and business as usual.
AMERICAN RESCUE PLAN ACT OF 2021 EXPANDS TAX CREDITS FOR EMPLOYEES TAKING QUALIFYING COVID-19 RELATED LEAVE
On March 11, 2021, President Biden signed the American Rescue Plan Act of 2021 (the Act). In addition to providing various stimulus benefits, the Act extends the tax credits for private employers who voluntarily provide employees with paid leave according to the standards set forth in the otherwise-expired Families First Coronavirus Relief Act (FFCRA). These extended tax credits apply to qualifying leave taken between April 1, 2021 and September 30, 2021.
In addition to expanding tax credits, the Act resets the balance of Emergency Paid Sick Leave (EPSL) that employers can voluntarily provide to eligible employees to two weeks as of April 1, 2021. Any EPSL leave provided under the FFCRA not used by April 1, 2021 will not carry over. The Act also removes the requirement that the first two weeks of leave taken under the Emergency Family Medical Leave Expansion Act (EFMLA) be unpaid. Accordingly, an employer may choose to provide up to 12 weeks of paid EFMLA leave and receive the tax credit.
The Act expands the qualifying reasons for EPSL and EFMLA leave. Beginning April 1, 2021, all six EPSL‑qualifying reasons remain in effect. But as of April 1, 2021, these six reasons also qualify as qualifying reasons for EFMLA leave. Moreover, reason number three – employee is seeking a medical diagnosis if experiencing coronavirus symptoms – is expanded to include situations where: employee is seeking or awaiting results of a diagnostic test for, or a medical diagnosis of, COVID-19 and was either exposed to COVID-19 or requested such test or diagnosis; or employee is obtaining COVID-19 immunization or recovering from any injury, disability, illness, or condition related to such immunization.
Employers are reminded that offering EPSL or EFMLA leave is currently voluntary, but they will receive tax credits for doing so and will continue to receive tax credits through September 30, 2021.
As a note, the Act also includes an additional tax credit for specific “amounts paid under certain collectively bargained agreements,” including pension plan contributions and apprenticeship fund contributions that are allocable to employee paid sick and family leave.
NEW SECRETARY OF LABOR AND CHANGES AT THE NATIONAL LABOR RELATIONS BOARD (NLRB)
The leadership changes at labor are complete with the confirmation of Marty Walsh, the Mayor of Boston and a former labor worker, as Secretary of Labor. He echoed the theme of the Biden Administration “to build an economy that works for every single American…”.
An earlier move by the Biden Administration was to fire Peter Robb, the NLRB’s Trump-appointed General Counsel who had refused to resign. This was a controversial change because it had never been done before, since usually one is allowed to finish their term. President Biden also fired the Assistant General Counsel. As had been noted, Mr. Robb advanced many employer-friendly initiatives and advocated for a number of decisions expanding management rights. Peter Robb has been replaced by Jennifer Abruzzo, a veteran of the NLRB, who was recently Special Counsel to the Communications Workers of America. A leading labor attorney said her experience will allow her quickly to advance pro-Labor legal arguments and secure Union-friendly precedent. President Biden has appointed the only Democrat member of the NLRB, Lauren McFerran, as its Chairman. She is known to have written very strong dissents to some controversial decisions of the Trump-appointed NLRB, such as the issues of joint employment, worker classifications and unilateral changes in employee standards. The Biden administration has expressed that its two primary goals for labor policy are to promote collective bargaining and encourage Union membership. Therefore, we can expect many changes or reversals in policy over the long run.
US DEPARTMENT OF LABOR ENDS PROGRAM ALLOWING EMPLOYERS TO SELF-REPORT FLSA VIOLATIONS
In 2018, the Trump administration implemented the Payroll Audit Independent Determination Program (PAID), which allowed employers to voluntarily report and fix Fair Labor Standards Act (FLSA) minimum wage and overtime violations. Under PAID, employers could self-report FLSA violations and agree to pay 100% of back wages owed during a two year period in exchange for settlements which allowed them to avoid litigation and negative publicity. The current administration opposed the PAID program, arguing the program curtailed employees’ ability to bring private actions against their employers for FLSA violations and allowed violating employers to avoid paying a third year of back wages, liquidated damages, or other penalties. On January 29, 2021, the U.S. Department of Labor announced the immediate end of the PAID program, indicating PAID-advantaged violating employers and deprived workers of their rights under the FLSA. The current administration makes clear the Wage and Hour Division will investigate FLSA violations to verify that employers comply with their obligations and the Department intends to rigorously enforce the FLSA.
TIP OF THE MONTH: At-will employers are generally permitted to mandate vaccination as a condition of employment. That said, even at-will employers seeking to implement a workplace vaccination policy will have to ensure they properly handle disability and religious based accommodation requests. Failure to properly handle vaccine accommodation requests could result in an otherwise well-intentioned employer running into a costly discrimination suit.
Hanft Fride’s business and trial lawyers are located at 1000 U.S. Bank Place, in Duluth, Minnesota. Visit our website at www.hanftlaw.com for general information on the firm and our attorneys. Our employment lawyers include Tom Torgerson, Rob Merritt and Scott Witty. Richard Burns is now of Counsel.
The information provided in this E-letter is general in nature and should not be used as a substitute for professional services and advice. The communication and receipt of this information is not intended to create an attorney-client relationship. Readers should consult with their legal counsel before taking any action on matters covered in this E‑letter.
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Copyright 2021 by Hanft Fride, P.A. All rights reserved. Hanft Fride, A Professional Association, 1000 U.S. Bank Place, 130 W. Superior Street, Duluth, MN 55802. Phone 218.722.4766; Fax 218.529.2401.