First and Foremosts March 2021 Presentation

© 2021 Lerch, Early & Brewer
Presented by:
1
First & Foremosts
Legal Update Covering
January 2021-March 2021
Julie A. Reddig and Joshua Schmand
Employment Attorneys
Lerch, Early & Brewer, Chtd
Wednesday, March 17, 2021

2
COVID-19 Related Matters

3
Extension of Voluntary FFCRA Tax Credit
• American Rescue Plan Act of 2021 – signed by President Biden on March 11, 2021.
• Employers with less than 500 employees voluntarily providing FFCRA leave can
continue to do so through September 30, 2021 and receive the tax credit.
• New Bank of EPSL – new 10-day bank re-sets starting on April 1, 2021
• New Permitted Reasons for Taking EPSL (Sick) Leave:
– the employee is seeking or awaiting the results of a diagnostic test for, or a
medical diagnosis of, COVID-19 and such employee has been exposed to COVID-
19 or the employee's employer has requested such test or diagnosis;
– the employee is obtaining a COVID-19 vaccination; or
– the employee is recovering from any injury, disability, illness, or condition
related to a COVID-19 vaccination.

4
Extension of Voluntary FFCRA Tax Credit
• Higher daily cap on employee’s regular rate of pay:
– $511 daily cap for the new vaccine related absences; new awaiting test
results for exposure or at employer’s request; and because of the
employee’s own symptoms, quarantine or isolation
– $200 daily cap remains for the remainder of the original qualifying
reasons (absences to care for another individual related to COVID-19)
• New Permitted Reasons for Taking EFMLA (Family) Leave:
– All of the qualifying reasons for paid sick leave
– First two weeks are now paid (previously unpaid)
– All 12 weeks at 2/3 the employee’s regular rate of pay up to a maximum
of $200 per day for all PFL reasons

5
American Rescue Plan Act cont.’d
COVID Rules and Guidance
• COBRA Premium Subsidies –
– 100% subsidy for premiums for COBRA between April 1, 2021
through Sept 30, 2021 for elections made during this period
– Employees who lost health plan coverage through an
involuntary termination or reduction of hours after
November 1, 2019 but did not elect COBRA must receive a
new COBRA election notice.
– Employers will receive a payroll tax credit for the COBRA
premium subsidy

6
American Rescue Plan Act cont’d.
• Enhanced Unemployment Benefits through Sept 6, 2021
• Additional allocation of $7.25 billion for Paycheck
Protection Program (PPP)
• Grants of up to $10 million for restaurants with lower
gross receipts in 2020

7
Vaccines Change Employer COVID-19 Rules
• CDC announced new more relaxed COVID-19 protocols
for fully vaccinated individuals
• Remove quarantine requirements for workplace
exposures for vaccinated individuals w/o symptoms
• https://www.cdc.gov/coronavirus/2019-
ncov/vaccines/fully-vaccinated.html

8
Employee Vaccination Inquiries
• EEOC: Employer inquiry regarding employee’s proof of COVID-19
vaccination status is not a disability-related inquiry
• Unclear whether employer disclosure of employee’s vaccination
status is permissible under the ADA
• Best practice = keep it confidential
• Avoid disclosure through differential treatment of vaccinated
employees

9
CDC Issues Customizable COVID-19 Vaccine Content
Vaccine Toolkit for Employers and Employees
Customizable Covid-19 Vaccine Content for
Essential Workers

10
Can Employers Incentivize Employee COVID-19
Vaccinations?
• EEOC Withdraws proposed Wellness Incentive Rules

11
What are your Company’s
planning with regard to
Vaccines?
Time for an anonymous poll!

12
OSHA Guidance on Protecting Workers and preventing the
spread of Covid-19 in the Workplace
• January 29, 2021 OSHA issued advisory guidance to assist
employers in protecting workers and preventing the spread of
COVID-19
• New Recommendations:
– Involve employees & union in development of COVID-19 safety plan
– Provide information and training on the benefits and safety of
vaccinations
– Make COVID-19 vaccine available at no cost to all eligible employees
– Minimize the negative impact of quarantine and isolation on workers
– Set up an anonymous process for workers to voice concerns about
COVID-19 related hazards

DC Maryland Virginia
Title Workplace Safety During the COVID-
19 Pandemic Emergency
Amendment Act of 2021
NONE Final Permanent Standard for Infectious
Disease Prevention: SARS-CoV-2 Virus
that Causes COVID-19
Link to Law https://lims.dccouncil.us/downloads
/LIMS/46426/Signed_Act/B24-0058-
Signed_Act.pdf
N/A https://www.doli.virginia.gov/wp-
content/uploads/2021/01/Final-
Standard-for-Infectious-Disease-
Prevention-of-the-Virus-That-Causes-
COVID-19-16-VAC25-220-1.27.2021.pdf
Link to
Lerch Early
Article
https://www.employmentedgeblog.
com/the-district-of-columbias-new-
covid-19-workplace-safety-
requirements/
N/A https://www.employmentedgeblog.com/
virginia-is-first-again-covid-19-workplace-
safety-rule-becomes-permanent/
Local COVID-19 Workplace Safety Laws

14
The Rollback at DOL

15
President Biden withdraws Trump DOL Policies
Government Contractor’s AAP Obligations
• OFCCP: Executive Order 13950 Combating Race and Sex
Stereotyping by Government Contractors Overturned
• DOL: Withdrawal of the Independent Contractor Final
Rule adopting the “economic reality” test under the FLSA
• DOL: Rescission of regulation on joint employer
relationships under the FLSA

16
Wage and Hour/FLSA

17
Wage and Hour/FLSA
United States Dep't of Lab. v. Five Star Automatic Fire Prot., L.L.C., 987 F.3d 436 (5th
Cir. 2021).
– The employer required employees to record only the total number of hours
worked each day; not the start and stop times
– DOL investigated & interviewed workers who informed her they worked before
and after their scheduled work day;
– DOL & trial court concluded wages owed for all 53 employees for “off the clock”
time.
– U.S. Court of Appeals for the 5th Circuit applied the burden shifting framework
for federal wage claims where an employer fails to maintain proper records.
– If “the employer’s records are inaccurate or inadequate,” a plaintiff need only
show by “just and reasonable inference” that she was an employee,
worked the hours, and wasn’t paid.
A Reminder of the Importance of Time Records

18
FMLA

19
Wage and Hour/FLSA
Soutner v. Penn State Health, No. 20-1763, 2021 WL 118105 (3d Cir.
Jan. 13, 2021).
– Employee required to make two phone calls for absence: one to a “call-off” line
within 24 hours of the absence; and another to a third-party administrator to report
the need for FMLA leave within 15 days of the absence. When she reached 9 points
for failing to call in, the employer terminated her employment.
– Demonstrates the importance of an absence notification policy that requires an
employee to call in to a person to report absence
– Update FMLA policy to include how you expect your employees to communicate
with you regarding the need for leave and by when.
A Reminder of Importance of Call-in Procedures

20
State and Local Laws

DC Maryland Virginia
Applicability any individual who
performs work (or
who an employer
reasonably anticipates
will perform work) in
the District
employees who earn equal to
or less than $15 per hour or
$31,200 annually
employees whose avg. weekly
earnings in the previous 52 weeks (or
if less than 52 weeks, the avg. weekly
earnings for the weeks worked) are
less than the avg. weekly wage in VA
as determined by the VEC
Link to Law https://lims.dccouncil
.us/downloads/LIMS/
43373/Signed_Act/B2
3-0494-
Signed_Act.pdf
http://mgaleg.maryland.gov/20
19RS/Chapters_noln/CH_753_s
b0328e.pdf
https://lis.virginia.gov/cgi-
bin/legp604.exe?201+ful+HB330+pdf
Link to
Lerch Early
Article
https://www.employ
mentedgeblog.com/d
-c-passes-ban-on-
non-compete-
agreements/
https://www.lerchearly.com/ne
ws/what-maryland-employers-
need-to-know-about-new-law-
prohibiting-non-competes-
with-low-wage-earners
https://www.employmentedgeblog.c
om/virginia-ban-on-non-competes-
for-low-wage-employees/
Local Bans on Non-Compete Agreements

22
Wage and Hour/FLSA
Maryland Department of Labor Press Release:
– 64% of new claims filed in Maryland since January 1, 2021 flagged as potentially
fraudulent
– Significant increase in the number of claims fraudulently filed in the names of
people who are actively working and not unemployment.
– Department emailed all employers about potentially fraudulent charges appearing
on their fourth quarter benefit charge statement
Review Unemployment Statements for Fraud

Disclaimer:
This content is for your information only and is not intended to constitute legal advice. Please consult your attorney before
acting on any information contained here.
Unauthorized Recording and Broadcast Notice:
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prior written consent of Lerch, Early & Brewer, Chtd. Unauthorized recording (audio, video, still photography, etc.) of
presentations during sessions, posters, workshops, slide decks, or other presentation materials, without the express written
consent of Lerch, Early & Brewer, Chtd. and individual authors is strictly prohibited.
23
Mark your calendars
Next Meeting – May 19, 2021

24
First & Foremosts
About the Presenter
Employment attorney Julie Reddig helps employers build and maintain
productive workplaces by navigating the many federal, state, and local
laws protecting employees in the workforce. She counsels management
on avoiding and defending against employment claims before
administrative agencies and local, state, and federal courts in Maryland
and the District of Columbia.
Julie A. Reddig
T 301-961-6099
F 301-347-1788
jareddig@lerchearly.com
Employment & Labor Attorney
Lerch, Early & Brewer

25
First & Foremosts
About the Presenter
Josh Schmand is a litigation and employment attorney who works on
complex business, corporate, and commercial disputes, counsels clients
on employment matters, and advises on the risks and benefits of
litigation. He is well-versed in litigating in state and federal courts when
necessary.
Joshua C. Schmand
T 301-347-1273
F 301-347-3359
jcschmand@erchearly.com
Employment & Labor Attorney
Lerch, Early & Brewer

First and Foremosts March 2021 Presentation

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