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On March 11, 2021, President Joe Biden signed into law the American Rescue Plan Act (ARPA) of 2021 to provide economic relief during the coronavirus pandemic. The $1.9 trillion measure has several provisions of note that directly affect employers.
Paid Leave
COBRA
Dependent Care Assistance Programs (DCAP)
Unemployment
The Employee Retention Credit
This credit, enacted under the CARES Act, is extended to Dec. 31, 2021. It allows qualifying employers to claim a credit for wages paid to workers they retained on their payroll during the pandemic.
Small Businesses
Pension Plan Relief
By Jeff Nowak on December 21, 2020POSTED IN FFCRA, LEGISLATION
Late last night, as I read through House Speaker Pelosi’s press release announcing a stimulus deal, I focused in on the following statement that the new stimulus bill:
Supports paid sick leave: The agreement provides a tax credit to support employers offering paid sick leave, based on the Families First framework.
Naturally, my tired brain read the “Families First” phrasing to mean that FFCRA stalwarts in Congress were able to negotiate an extension of FFCRA leave beyond its current expiration date of December 31, 2020. I WAS WRONG.
Here’s the LATEST info:
FFCRA Leave Ends This Month, but Tax Credits Continue for Leave Voluntarily Extended to Employees
The current version of the bill, which is expected to be called for a vote this evening, results in the following:
In other words, FFCRA leave is no longer required, but if covered employers voluntarily provide these leave benefits through March 31, 2021, they are eligible to take the tax credit for the leave.
Please note: I am not reading this amendment to mean that an employer can take a tax credit for an entirely new bucket of FFCRA leave on January 1, 2021. No, no, no! If an employee used 80 hours of paid sick leave (EPSL) earlier this year, for instance, they technically would not have had access to a new EPSL bucket on January 1, 2021. Therefore, the employer cannot take the credit for additional EPSL provided in 2021. That said, if the FMLA 12-month period resets under the employer’s policy, it seems apparent that an employee would be entitled to paid FMLA once again. Perhaps the DOL or IRS will provide updated guidance on this, but this interpretation seems to be the most logical based on a reading of the statutory text.
Also note: This bill does nothing for public employers, as unfortunately, they never were able to take the tax credit. For these folks, no mandatory FFCRA leave and no tax credit.
You want a taste of the new statutory language? Click here for 5593 pages of stimulus overload (pdf).
Don’t Forget State Laws
Like the federal government, many state and local governments enacted similar paid COVID-leave laws and ordinances earlier this year to assist employees dealing with COVID-19 or caring for family members affected by the pandemic. Although larger employers (with 500 or more employees) are not governed by FFCRA, several states and a few municipalities have enacted or amended paid sick leave laws to account for time off due to COVID-19 related reasons. For example, Colorado, New Jersey, Oregon, the District of Columbia and several cities in California (Emeryville, Long Beach, Los Angeles, Oakland, Sacramento, San Diego, San Francisco, San Jose, San Mateo, and Santa Rosa) have extended FFCRA-like benefits to employers not covered by the federal law.
Some of these laws also expire December 31, 2020. But some do not. It is critical that employers be mindful of other paid leave requirements under state and local laws, as well as their own paid leave and PTO policies.
What else is contained in this House bill?
For a more comprehensive analysis of this House bill, a few Littler colleagues and I review it here.
In general, it is recommended for employers to offer vaccinations to employees on a voluntary basis; however, employers in most states may be able to mandate COVID-19 vaccinations as long as the employer complies with the Americans with Disabilities Act and Title VII of the Civil Rights Act.
The Equal Employment Opportunity Commission has released specific guidance (Section K) on the COVID-19 vaccine. It has also updated its Pandemic Preparedness for the Workplace guidance to reflect the current COVID-19 pandemic. The guidance indicates that an employer must consider reasonable accommodations for employees with disabilities and those employees whose religious beliefs conflict with receiving a vaccine.
If your workforce is covered by a collective bargaining agreement (CBA), a required vaccination would be a condition of employment that may already be included in the CBA or may need to be bargained with the union before such a policy could be implemented.
If the vaccine is mandated by the employer, the employer may be required to cover the cost of the vaccine and pay an employee for time spent getting the vaccine. Under the Fair Labor Standards Act, an employer must cover any work-related expenses for an employee if the cost of the expense would drop the employee below minimum wage. State laws may also require payment.
In addition, an employer is obligated to pay an employee for time spent seeking medical attention that is required by the employer and occurs during work hours.
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New Overtime Rule Raises Salary Cut-Off to $35,568
By Lisa Nagele-Piazza, J.D., SHRM-SCP
September 24, 2019
Employees who make less than $35,568 are now eligible for overtime pay under a final rule issued today by the U.S. Department of Labor (DOL). The new rate will take effect Jan. 1, 2020.
To be exempt from overtime under the federal Fair Labor Standards Act (FLSA), employees must be paid a salary of at least the threshold amount and meet certain duties tests. If they are paid less or do not meet the tests, they must be paid 1 1/2 times their regular hourly rate for hours worked in excess of 40 in a workweek.
The new rule will raise the salary threshold to $684 a week ($35,568 annualized) from $455 a week ($23,660 annualized). A blocked Obama-era rule would have doubled the threshold, but a federal judge held that the DOL exceeded its authority by raising the rate too high.
The new rule is expected to prompt employers to reclassify more than a million currently exempt workers to nonexempt status and raise pay for others above the new threshold.
Here's what employers need to know about the new rule.
The Details
Under the new rule, nondiscretionary bonuses and incentive payments (including commissions) paid on an annual or more frequent basis may be used to satisfy up to 10 percent of the standard salary level.
In addition to raising the salary cutoff for exempt workers, the new rule raises the threshold for highly compensated employees from $100,000 a year to $107,432 (of which $684 must be paid weekly on a salary or fee basis). The increase is about $40,000 less than what the DOL initially proposed because it is based on the 80th percentile, rather than the 90th percentile, of all full-time salaried workers' earnings nationwide.
For the FLSA's executive, administrative and professional exemptions—the so-called white-collar exemptions—employees must perform certain duties and earn at least the salary threshold. But under a special rule, highly compensated employees are eligible for exempt status if they meet a reduced duties test as follows:
Employers should note that the rule doesn't make any changes to the duties tests.
Also, unlike the overtime rule that President Barack Obama's administration put forward in 2016, the new rule doesn't include automatic adjustments to the exempt salary threshold.
The Obama administration sought to automatically adjust the threshold every three years to represent the 40th percentile of earnings for full-time salaried workers in the lowest-wage census region.
Employers likely will be pleased that the new rule doesn't call for automatic adjustments to the salary threshold, as many believe the marketplace—rather than the federal government—should dictate appropriate salary levels.
However, the DOL "intends to update these thresholds more regularly in the future," according to the final rule.
Review Job Descriptions and Budgets
Employers should immediately pull data for exempt workers earning below the threshold.
Review your budgets, consider what positions you might restructure, flag whom you might reclassify to nonexempt or give a salary increase, and think about when, practically speaking, you should implement changes.
Employers should forecast financial ramifications for changes in labor costs necessitated by changes in the rules.
Employers also should weigh the cost of raising employee salaries above the new threshold against the cost of reclassifying employees as nonexempt and paying overtime. Individual workforce determination should be made in consultation with HR professionals and outside counsel to ensure compliance with the new rules.
Meeting the salary cutoff is just one requirement for classifying workers as exempt. Employers should also take the time to review workers' job duties to ensure that they satisfy the applicable exemption's criteria.
The white-collar exemptions each have slightly different duties tests:
Although the changes to the overtime rule are all about salary, the upcoming adjustments provide a good opportunity for employers to look at the job duties for their lowest exempt pay bands and make sure they actually qualify. This is a great time to correct errors on the job-duties side.
In general, it is a good idea for employers to periodically review job descriptions and ensure that they are up-to-date and accurate.
Develop a Training and Communication Strategy
If employers decide to reclassify employees to nonexempt status, they will need to track affected workers' work time and pay overtime premiums for all hours worked beyond 40 in a workweek.
Employers will need to develop a communication strategy and make sure that reclassified employees know they are not being demoted. Be clear that these changes are based on new government rules.
In addition, employees who will be required to track their hours for the first time—as well as their managers—will need training on time-keeping procedures.
Employers should evaluate their systems for time-keeping, tracking overtime and paying bonuses. They should also develop plans and procedures to manage or limit overtime hours worked by newly nonexempt workers.
Taking some initial steps sooner rather than later can go a long way toward triaging potential issues and creating a smoother transition plan.
Join us for lunch and a preview of The Five Behaviors of a Cohesive Team. Come to learn how your
business can perform at a higher level through a fast, practical, and relevant approach to team training.
Based on the New York Times best-selling book, The Five Dysfunctions of a Team by Patrick Lencioni, The Five Behaviors of a Cohesive Team program helps teams discover how to become more cohesive and productive.
At the Lunch & Learn, you will:
The room holds 20 people, so if you would like to come to the L&L (and get fed :)), please signup right away. If you're unable to attend in-person, but would like to attend virtually, please designate that in the contact form below. Be sure to include your email address in order for us to send you L&L handouts prior to the event.
We look forward to seeing you on June 12th!
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Come for a light lunch, a piece of pie, and PEACE OF MIND. Join John of GPBG Employer Advisers (Bismarck-based HR and Business Development/Strategy Consulting Firm) to learn about current and new state and federal employment regulations, how they affect your business, and HOW TO GET and STAY COMPLIANT.
Sample of topics to be covered:
The conference room holds 20 people. First 20 to sign-up will have a guaranteed spot. If you cannot make it in person, or it fills up, this Lunch & Learn will also be available to join virtually.
NOON - 12:45PM
Wednesday, December 5, 2018
Upper Conference Room - Idea Center
2720 East Broadway Ave - Bismarck, ND
ONLY 20 SPOTS AVAILABLE (first 20 to sign-up)
To register, fill out form below:
