All posts by Navigant Law Group, LLC

Navigating the Certification Process

Part 1: Understanding the terminology of the certification world

When you first enter the world of certification you come face to face with a entire new set of terminology – mostly comprised of acronyms that everyone rattles off their tongue so fast it’s hard to keep up.  To get ready for the new world, here’s a guide to some of the common terms you need to know:

 

8(a): “8(a) Business Development Program”

The 8(a) Business Development Program is a business assistance program for small disadvantaged businesses administered by the Small Business Administration (SBA). The 8(a) Program offers assistance to firms that are owned and controlled at least 51% by socially and economically disadvantaged individuals.

 

CAGE Code: “The Commercial And Government Entity Code”

CAGE Code is a five-character ID number used within the federal government, assigned by the Department of Defense’s Defense Logistics Agency (DLA). The CAGE code is used to support a variety of mechanized systems throughout the government and provides a standardized method of identifying a given legal entity at a specific location.

 

DBE: “Disadvantaged Business Enterprise”

DBEs are for profit small business concerns located in the United States where socially and economically disadvantaged individuals own at least a 51% interest and also control management and daily business operations. African Americans, Hispanics, Native Americans, Asian-Pacific and Subcontinent Asian Americans, and women are presumed to be socially and economically disadvantaged.  Other individuals can also qualify as socially and economically disadvantaged on a case-by-case basis.

 

DUNS number: “Data Universal Numbering System”

D‑U‑N‑S Number is a unique nine-digit identifier for businesses assigned by Dun & Bradstreet. D‑U‑N‑S Numbers are often referenced by lenders and potential business partners to help predict the reliability and/or financial stability of the company in question.

 

EDWOSB: “Economically Disadvantaged Women Owned Small Business”

EDWOSB is part of the SBA’s WOSB Federal Contract Program.  To qualify as an economically disadvantaged business within the women’s contracting program, a business must: Meet all the requirements of the women’s contracting program, be owned and controlled by one or more women, each with a personal net worth less than $750,000, be owned and controlled by one or more women, each with $350,000 or less in adjusted gross income averaged over the previous three years, and be owned and controlled by one or more women, each $6 million or less in personal assets.

 

HUBZone Business: “Historically Underutilized Business Zones”

A HUBZone business is a qualified small business concern located in historically under-utilized business zones that are in an area located within one or more qualified census tracts, a qualified non-metropolitan county, or lands within external boundaries of an Indian reservation.

 

LGTBE: “Lesbian, Gay, Bisexual and Transgender Business Enterprise”

LGTBEs are business located in the United States which have been certified by a third-party certifier to be 51% owned, operated and controlled by one or more Lesbian, Gay, Bisexual and Transgender persons.

 

MBE: “Minority Busines Enterprise”

MBEs are business located in the United States which have been certified by a third-party certifier to be 51% owned, operated and controlled by one or more minority group members. Minority group members are United States citizens who are Asian, Black, Hispanic and Native American.

 

MOSB: “Minority-Owned Small Business”

MOSB is another way to refer to a minority owned small business but does not necessarily refer to a business that has been certified by a third-party certification agency.

 

NAICS codes: “North American Industry Classification System”

NAICS is an industry classification system that groups establishments into industries based on the similarity of their production processes. It is a comprehensive system covering all economic activities. There are 20 sectors and 1,057 industries in 2017 NAICS United States

 

SAM: “System for Award Management”

SAM is a government-wide portal that is consolidating the capabilities of multiple systems and information sources used by the Federal government in conducting the acquisition and financial assistance (which includes grants and cooperative agreements) processes. The term “SAM number” is a misnomer, if you are asked for your SAM number you are actually being asked for your CAGE Code.

 

SB: Small Business Enterprise

SB is a concern that is independently owned and operated operation that qualifies as a small business in its primary NAICS code under the criteria and size standards in 13 CFR Part 121.

 

SDB: “Small Disadvantaged Businesses”

SD is a small business owned and controlled by socially and economically disadvantaged individuals as defined by Federal Acquisition Regulation (FAR) 19.001.

 

SDVBE: “Service-Disabled Veteran’s Business Enterprise”

SDVBE are businesses located in the United States are 51% owned, operated and controlled by one or more service-disabled veterans.  As a federal government program, third-party certification is not required. You can self-represent your business to the federal government as being owned by a service-disabled veteran by updating the socio-economic status section of your SAM business profile.

 

SIC Code: Standard Industrial Classification

The Standard Industrial Classification (SIC) are four-digit codes that categorize the industries that companies belong to while organizing the industries by their business activities. The SIC codes were mostly replaced in 1997 by NAICS system of six-digit codes

 

VBE: “Veterans Business Enterprise”

VBEs are businesses located in the United States which have been certified by a third-party certifier to be 51% owned, operated and controlled by one or more U.S. military veterans.

 

VOSB: Veteran-Owned Small Business

VOSB is another way to refer to a VBE and but does not necessarily refer to a business that has been certified by a third-party certification agency.

 

WBE: “Women Business Enterprise”

WBEs are business located in the United States which have been certified by a third-party certifier to be 51% owned, operated and controlled by one or more women.

 

WOSB: “Women Owned Small Business”

The SBA’s WOSB Federal Contract Program provides access to federal contracting opportunities for WOSBs. The Program allows contracting officers to set aside specific contracts for certified WOSBs and EDWOSBs and will help federal agencies achieve the existing statutory goal of five percent of federal contracting dollars being awarded to WOSBs

 

 

While there are a number of other acronyms to learn in the world of certification, the list here should get you started into navigating your own journey!

 

 

Should you have any questions about certification for your business or would like to schedule an initial consultation, please contact Navigant Law Group, LLC at (847) 253-8800 or email us at info@navigantlaw.com.

At Navigant Law Group we know the ropes of the legal system. Business services include: Contract Law, Employment Law, Intellectual Property, WBE / MBE / VBE / LGBT / DBE certification, Commercial Real Estate, and other general Business Law services. Individual services include Estate Planning, Wills and Trusts, Administration, Probate, and Guardianship.

Our attorneys’ unparalleled focus on goal-oriented, detailed planning and advice will have you ship shape in no time. Want to succeed in your business and make your personal goals a reality in the new year? Come chart your course with Navigant Law Group, LLC!

This article constitutes attorney advertising. The material is for informational purposes only and does not constitute legal advice.

VACCINATION INCENTIVES: DO THE RISKS OUTWEIGH THE BENEFITS?

The Centers for Disease Control has asked employers to encourage vaccinations for years, saying “Making annual flu vaccinations part of your workplace wellness program offers many benefits to you and your employees”.  With the COVID-19 Pandemic, the usually listed benefits of promoting vaccinations (reduced missed work, increased morale, etc.) are magnified.  With that in mind, a number of companies – including Dollar General, Trader Joe’s, Aldi, and Instacart – have announced an intention to provide incentives to employees to encourage them to be vaccinated.

WHAT ARE SOME OF THE INCENTIVE’S BEING PROVIDED?

  • Aldi is offering employees compensation for getting vaccinated, saying it would provide workers with two hours of pay for each of the two vaccine doses. “Providing accommodations so employees can receive this critical vaccine is one more way we can support them and eliminate the need to choose between earning their wages and protecting their well-being,” said Jason Hart, CEO of Aldi U.S., in a statement.
  • Trader Joe’s will also give employees two hours of pay per dose for getting the vaccine, plus they are shifting around schedules to make sure employees have time to get vaccinated.
  • Dollar General will give employees the equivalent of four hours of pay if they get the vaccine. We do not want our employees to have to choose between receiving a vaccine or coming to work,” the company said.
  • Instacart is offering a $25 stipend for eligible workers and contractors. As states and provinces begin their phased vaccine rollouts, eligible shoppers will receive a $25 Vaccine Support Stipend “With COVID-19 cases continuing to rise across the country, we’re taking proactive steps to advocate that government agencies recognize Instacart shoppers as critical essential workers who deserve early access to vaccines,” said Instacart CEO and founder Apoorva Mehta in a statement. “Our goal with the introduction of our new Vaccine Support Stipend is to ensure that, when the time comes, Instacart shoppers don’t have to choose between earning income as an essential service provider or getting vaccinated.”

BIG COMPANIES ARE NOT THE ONLY ONES PROVIDING INCENTIVES, SMALL BUSINESSES ARE ALSO JUMPING ONBOARD.

  • Forbes reported that John Ross, the CEO of Test Prep Insight, an online education company with 10 employees, is giving employees the day off after they get their second dose of the vaccine, plus the two following days off paid, regardless of whether they actually have a reaction.  Also, after his employees receive their second shot, the company will give each of them a $100 gift card for Starbucks, Amazon or REI. Then, after all the workers have received the vaccine, “I will take them all out to dinner at a nice steakhouse, where I [will] pick up the tab. They can order whatever they want—[appetizers], wine, surf and turf—I don’t care. I am hoping this last incentive creates some peer pressure amongst employees, as I really want them all to get the vaccine.”
  • reported that WikiLawn, a lawn mowing and landscaping company that connects clients with gig workers, says he’s offering a flat cash bonus of $500 to employees who get both vaccine doses and can provide proof they’ve done so. The company is also covering costs associated with getting a vaccine, such as paying for child care in the event parents can’t spare the time to get the vaccine.
  • Inc also reported that DebtHammer, a personal finance publication, is offering $200 and some additional paid time off as a bonus.  And Gadget Review, a technology and lifestyle publication, will give employees who get the vaccine an extra week of paid vacation, effective as soon as they finish both doses.

WHAT ARE THE RISKS OF PROVIDING INCENTIVES?

The current state of rules surrounding incentive programs for vaccinations is unclear.  The Equal Employment Opportunity Commission (EEOC) has been grappling with employer-paid incentives for participating in wellness activities, and it’s unclear whether those activities include receiving vaccinations.  While the EEOC issued regulations on this topic in 2016, AARP filed a legal challenge and on January 1, 2019 the regulations were vacated.  At that time, the EEOC indicated that the new rule would not likely be ready until 2021… and then came COVID-19.  So here we are in 2021, dealing with a global pandemic and new vaccination programs just now rolling out. What are businesses to do when they are relying on vaccinations to allow them to return to “normal” operations?

On Jan. 7, the EEOC released a set of proposed rules related to wellness programs that track employees’ health data.  The proposed rules say that employers may not require employees to participate; may not deny coverage under any of its group health plans or particular benefits packages within a group health plan; generally may not limit the extent of such coverage; and may not take any other adverse action against employees who decline to participate in an employee health program or fail to achieve certain health outcomes. Additionally, a wellness program that asks participants to provide medical information must not impose any condition that would adversely affect the terms, conditions, or privileges of employment of any employee who does not want to participate.  Essentially, this rule states employers generally may offer no more than de minimis incentives (e.g, a water bottle or gift card of modest value) to encourage employees to take part in a wellness program that includes disability-related inquiries and medical examinations.

IF YOU ARE NOT TRACKING EMPLOYEE’S HEALTH DATA, WHAT THEN? 

That’s the big question.  In a Feb. 1 letter, SHRM and 41 other business groups asked the EEOC to clarify “the extent to which employers may offer employees incentives to vaccinate without running afoul of the Americans with Disabilities Act [ADA] and other laws enforced by the EEOC.” The ADA prohibits employers from coercing employees to participate in wellness activities.

WHAT ARE THE RISKS ASSOCIATED WITH PROVIDING VACCINATION INCENTIVES? 

If you are considering implementing incentive programs, even small programs like a $25 gift card for vaccinated employees, be sure you are fully aware of the risks before you launch the program.

Lisa Coppola, managing partner of The Coppola Firm in New York State, said “The employee wellness programs litigation of the last decade informs us that incentivizing personal healthcare decisions is a risky proposition for employers. It’s very clear under the law that an employee cannot be demoted or otherwise prejudiced if they decline to be vaccinated. As a result, then, providing incentives for COVID-19 vaccines may walk an employer into a discrimination-related claim.”

What should you consider when looking into incentive programs? Trisha Barita, Managing Attorney with Barita Law Firm in Houston, Texas says “When considering incentivizing employees to get the vaccine, employers should be careful because loss of a benefit could be considered an adverse action against those who truly have a legally protected reason for not getting the vaccine such as for a disability or sincerely held religious belief.”

Like many employment policy related pitfalls, as the saying goes, no good deed goes unpunished.  So proceed with caution until the EEOC gives clear guidance on this issue.

Should you have any questions about vaccinations and incentive policies for your business or would like to schedule an initial consultation about another matter, please contact Navigant Law Group, LLC at (847) 253-8800 or email us at info@navigantlaw.com.

At Navigant Law Group we know the ropes of the legal system. Business services include: Contract Law, Employment Law, Intellectual Property, WBE/MBE/VBE/LGBTE/DBE certification, Commercial Real Estate, and other general Business Law services. Individual services include Estate Planning, Wills and Trusts, Administration, Probate, and Guardianship.

Our attorneys’ unparalleled focus on goal-oriented, detailed planning and advice will have you ship shape in no time. Come chart your course with Navigant Law Group, LLC!

This article constitutes attorney advertising. The material is for informational purposes only and does not constitute legal advice.

COVID HR Update:  OSHA Penalties Increased, New OSHA Guidance on COVID-19 for Employers plus a new CDC Tool Kit on Vaccine Communication for Essential Workers.

2021 is starting to feel like March of 2020 all over again for employers.  Each day seems to bring new information, guidance and rules that need to be reviewed and incorporated into the workplace.   We highlight some of those items here:

New OSHA Guidance on Addressing COVID-19 In the Workplace

The Occupational Safety and Health Administration (OSHA), part of the U.S. Department of Labor, recently issued new guidance titled “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace”.  In the DOL’s words, the Guidance includes “stronger worker safety guidance to help employers and workers implement a coronavirus prevention program and better identify risks which could lead to exposure and contraction”.

While the document is labeled as “guidance” and is not a “standard or regulation”, it does contain recommendations as well as descriptions of existing mandatory safety and health standards.  The Occupational Safety and Health Act’s (“the OSH Act” or “the Act”) General Duty Clause, Section 5(a)(1), requires employers to provide their workers with a workplace free from recognized hazards that are causing or likely to cause death or serious physical harm.  So, while the guidance does not create new legal obligations, it is still important for employers to familiarize themselves with these new guidelines and consider incorporating them into their workplace procedures.  Employers should not be surprised if OSHA compliance officers conducting inspections look to this publication in assessing what a reasonable employer should do to provide a workplace compliant with the General Duty Clause.

The guidance recommends several essential elements in a prevention program:

  • Conduct a hazard assessment.
  • Identify control measures to limit the spread of the virus.
  • Adopt policies for employee absences that don’t punish workers as a way to encourage potentially infected workers to remain home.
  • Ensure that coronavirus policies and procedures are communicated to both English and non-English speaking workers.
  • Implement protections from retaliation for workers who raise coronavirus-related concerns.

“More than 400,000 Americans have died from COVID-19 and millions of people are out of work as a result of this crisis. Employers and workers can help our nation fight and overcome this deadly pandemic by committing themselves to making their workplaces as safe as possible,” said Senior Counselor to the Secretary of Labor M. Patricia Smith. “The recommendations in OSHA’s updated guidance will help us defeat the virus, strengthen our economy and bring an end to the staggering human and economic toll that the coronavirus has taken on our nation.”

Some of the notable items included in the guidance include:

  • Employers should provide appropriate face coverings to employees at no cost and be sure those face coverings are either surgical masks or cloth coverings composed of at least two layers.

 

  • It reaffirms the EEOC’s position that employers should not unnecessarily require a COVID-19 negative test result or a doctor’s note as a prerequisite to return to work because of the significant delays that requirement may cause for both employers and employees.

 

  • Employers should not distinguish between workers who are vaccinated and those who are not.  For instance, vaccinated workers should not be excused from wearing masks given the uncertainty as to whether those persons can still transmit the virus.
  • It suggests that businesses create “an anonymous process for workers to voice concerns about COVID-19-related hazards” and take other steps to protect employees against retaliation.

There are many more new or modified recommendations included in the guidance, so be sure to have someone in your organization do a full review to ensure you are in compliance as applicable for your business.

Additionally, President Biden has ordered the agency to consider whether “any emergency temporary standards on COVID-19” are necessary and issue any such standards by March 15.  That means employers should expect that some of the provisions of this guidance will become mandatory standards that OSHA issues on or before March 15.

 

OSHA Increases Maximums on Civil Penalties in 2021

The new OSHA guidance comes just a few weeks after OSHA announced a cost-of-living adjustment to civil penalty amounts for 2021.  OSHA’s maximum penalties for serious and other-than-serious violations will increase from $13,494 per violation to $13,653 per violation. The maximum penalty for willful or repeated violations will increase from $134,937 per violation to $136,532 per violation.  The Department of Labor Federal Civil Penalties Inflation Adjustment Act Annual Adjustments for 2021 final rule was effective on January 15, 2021, and the increased penalty levels apply to any penalties assessed after that date.

 

CDC Releases Toolkits for Vaccine Communications

 

According to the latest figures released by the U.S. Centers for Disease Control and Prevention, more than 33 million doses of COVID-19 vaccine have been administered in the United States to date.

Meanwhile, those doses represent only 6.4 million Americans receiving full, two-dose vaccinations, while more than 27 million people have received only the first of two vaccine doses required, the CDC reported.

According to the CDC, the new Toolkit is designed for “employers of essential workers, including police officers, firefighters, and people working in education, childcare centers, and grocery stores.” The Toolkit is intended to help employers educate employees about COVID-19 vaccines, raise awareness about the benefits of vaccination, and address common questions and concerns.

The Toolkit includes key messages about COVID-19 vaccines that employers can use to educate employees, slides employers can use for informational meetings, a sample newsletter businesses can send to their employees, a FAQ document businesses can add to their other posters and notices, sample social media posts and many other items.

Interestingly, the Toolkit includes stickers that can be given to employees to wear when the are vaccinated. However, think carefully before you hand these out.  If the decision to be vaccinated is optional, then employees have the right to keep their vaccination decision private and requiring employees wear stickers could have serious implications.

There are other existing Tool Kits available on the CDC website, including the COVID-19 Vaccination Communication Toolkit for Medical Centers, Pharmacies, and Clinicians, the Recipient Education Toolkit for Healthcare Professionals and Pharmacists, the Long-Term Care Facility Toolkit, and the COVID-19 Vaccine Communication Toolkit for Community-Based Organizations.

 

Should you have any questions about new OSHA guidelines or establishing vaccination policies in your business or would like to schedule an initial consultation about another matter, please contact Navigant Law Group, LLC at (847) 253-8800 or email us at info@navigantlaw.com.

At Navigant Law Group we know the ropes of the legal system. Business services include: Contract Law, Employment Law, Intellectual Property, WBE/MBE/VBE/LGBTE/DBE certification, Commercial Real Estate, and other general Business Law services. Individual services include Estate Planning, Wills and Trusts, Administration, Probate, and Guardianship.

Our attorneys’ unparalleled focus on goal-oriented, detailed planning and advice will have you ship shape in no time. Come chart your course with Navigant Law Group, LLC!

This article constitutes attorney advertising. The material is for informational purposes only and does not constitute legal advice.

Illinois Passes Amendment to Workers’ Occupation Disease Act Creating Rebuttable Presumption In COVID-19 Workers’ Compensation Claims

Earlier this year, Governor Pritzker signed into law House Bill 2455, now Public Act 101-0633, which amended the Workers’ Occupation Disease Act (820 ILCS 310) among other items.

History of House Bill 2455/ Public Act 101-0633

Prior to House Bill 2455 being signed, COVID-19 related workers’ compensation coverage was hotly debated by pro-employee and pro-employer advocates across Illinois and the United States.

In the spring of 2020, the Illinois Workers Compensation Committee (ILWCC) adopted an emergency rule which included langauge very similar to the language which ended up in House Bill 2455. This emergency rule created quite a controversy and resulted in a lawsuit filed by several Illinois business groups and the issuance of a temporary injunction by the circuit court.

The ILWCC withdrew the emergency rule and the the Illinois legislature created House Bill 2455. While House Bill 2444 is essentially a codification of the initial ILWCC emergency rule, it creates clearer parameters as to how and when the new presumption applies.

New COVID-19 Related Amendment to Illinois’ Workers’ Occupation Disease Act

The new amendment to the Workers’ Occupation Disease Act made two significant modifications.

First, it created a rebuttal presumption that an employee’s COVID-19 diagnosis or related injury arises out of, and in the course of, that employee’s employment in certain defined circumstances. It requires the affected employers to provide worker’s compensation coverage to employees who are exposed to and contract COVID-19.

Second, unlike similar laws imposed by Wisconsin, Washington, and Utah, which limit coverage to healthcare workers and law enforcement, Illinois expanded the coverage to be provided by increasing the types of individuals who are protected.  Instead of using the phrase “first-responders” or “law enforcement”, Illinois used the phrase “COVID-19 first responder or front-line worker.” While this minor change in wording may seem inconsequential, it actually has huge consequences.

This additional language expands the number of different types of employees covered under the amendment; instead of solely protecting the expected and important (but restrictive) groups classified as “law enforcement”, “first responders”, or “health care workers”, the amendment provides coverage to employees in various areas of the economy.

Who Is a COVID-19 First Responder or Front-Line Worker under Illinois Law?

The difference is in the extent of coverage provided by Illinois is clearly visible once you understand how the Illinois legislature defined the phrase “COVID-19 first responder or front-line worker”. Taking a very wide approach, Illinois stated that such term means:

“all individuals employed as police, fire personnel, emergency medical technicians, or paramedics; all individuals employed and considered as first responders; all workers for health care providers, including nursing homes and rehabilitation facilities and home care workers; corrections officers; and any individuals employed by essential businesses and operations as defined in Executive Order 2020-10 dated March 20, 2020”

While the definition above may not seem that different, the portion which has the biggest impact is the part that states “any individuals employed by essential businesses and operations as defined in the Executive Order 2020-10 dated March 20, 2020” (“Executive Order”).

Pursuant to the Executive Order, the following businesses are considered “essential businesses” (in addition to a number of others):  stores that sell groceries and medicine, gas stations and businesses needed for transportation, financial institutions, hardware and supply stores, laundry services, home-based care and services, professional services, hotels, food/beverage production and agriculture. In other words, all those individuals who are employed by grocery stores, pharmacies, convenience stores, food banks, media outlets, gas stations, banks, hardware stores, educational institutions, transportation providers, manufacturing facilities, or restaurants qualify for protection under the new COVID-19 related amendment to the Workers’ Occupation Disease Act.

Requirements to Qualify For COVID-19 Protection Under the Illinois’ Workers’ Occupation Disease Act

While the list of businesses considered to be essential seems exhaustive, Illinois did place a few restrictions on when an individual is able to request protection under the new amendment.  Individuals are only covered under the new COVID-19 related amendment to the Workers’ Occupation Disease Act if they are: (i) employed by an essential business; and (ii) are required (as part of their job) to encounter members of the general public or to work in employment locations of more than fifteen (15) employees.

In addition, the Illinois legislature determined, solely for the purposes of the new amendment, that an employee’s home or place of residence is not considered a place of employment, except for home care workers. This means that employees who work solely from home cannot file worker’s compensation claims related to contracting COVID-19.

COVID-19 Related Protection for Employers under the Illinois’ Workers’ Occupation Disease Act

While the amendment may initially seem to have been very heavily drafted in favor of employees, employers were not forgotten. The legislature carved out a specific exception within the amendment allowing an employer to present evidence to rebut the assumption that an employee contracted COVID-19 while performing services for the employer. This converts the presumption from a conclusive presumption into a rebuttable presumption.

An employer may rebut the presumption by presenting evidence that the employee did not contract COVID-19 as a result of their employment, including evidence that: (i) the employee was working from home, on leave or some combination thereof, for a period of 14 or more consecutive days immediately prior to the employee contracting COVID-19; (ii) the employer was engaging in and applying to the fullest extent possible or enforcing to the best of its ability industry-specific workplace health and safety practices based on updated guidance issued by the Centers for Disease Control and Prevention or Illinois Department of Public Health (or was using a combination of administrative controls, engineering controls, or personal protective equipment to reduce the transmission of COVID-19 to all employees) for at least fourteen (14) consecutive days prior to the employee contracting COVID-19; or (iii) the employee was exposed to COVID-19 by an alternate source.

In addition, the Illinois legislature added language as part of the amendment to the Workers’ Occupation Disease Act indicating that under no circumstances should any COVID-19 case increase or affect any employer’s workers’ compensation insurance experience rating or modification.  See 820 ILCS 310/1(g)(5).

Time Restraints on COVID-19 Related Protection under the Illinois’ Workers’ Occupation Disease Act

It is also important to note that the rebuttable presumption created by the new COVID-19 related amendment to the Workers’ Occupation Disease Act only applies for a limited period of time. Only those employees who were diagnosis with COVID-19 on or after March 9, 2020 and before December 31, 2020 are entitled to protection under the new amendment.

In addition, certain document may be required in order for the presumption created under the amendment to apply at trial. For COVID-19 diagnoses occurring on or before June 15, 2020, an employee must provide a confirmed medical diagnosis by a licensed medical practitioner or a positive laboratory test for COVID-19 or for COVID-19 antibodies. For COVID-19 diagnoses occurring after June 15, 2020, an employee must provide a positive laboratory test for COVID-19 or for COVID-19 antibodies.

Should you have any questions about the recent amendment to the Workers’ Occupation Disease Act or any other laws that may affect your business, or would like to schedule a free initial consultation, please contact Navigant Law Group, LLC at (847) 253-8800 or contact us online.

Navigant Law Group, LLC is a full-service law firm with various areas of service to assist your business, including: Employment Law, Intellectual Property, Commercial Real Estate, Litigation, and general Business Law services. Individual services include Estate Planning, Wills and Trusts, Probate, and Guardianship.

This article constitutes attorney advertising. The material is for informational purposes only and does not constitute legal advice.

 

It’s 2021. Do employers still need to pay for COVID-19 related Leave?

Confused? You are not alone. News articles vary between saying the Families First Coronavirus Response Act (FFCRA) expired and discussing how it was extended.  What does all of this mean?  Here’s what employers need to know:

What is the Families First Coronavirus Response Act (FFCRA)?

The FFCRA contains a number of new laws and small amendments to existing law, but for the purposes of this article we are focusing on three sections: Emergency Paid Sick Leave, Expanded FMLA (Family Medical Leave Act) and Tax Credits for Paid Sick and Paid Family and Medical Leave. The Emergency Paid Sick Leave Act implemented the requirement small businesses employers have all come to know – the required payment of up to 80 hours of sick leave for employees impacted by COVID-19. The Expanded FMLA broadened existing FMLA rules to apply in COVID-19 related childcare situations.  Tax Credits for Paid Sick and Paid Family and Medical Leave addressed how businesses can cover the costs for these paid leave requirements.  Each of these sections were set to expire on 12/31/20.

Did the FFCRA expire on December 31, 2020?

Yes and no.  (Love that answer don’t ya?) What does that mean: The required paid leave aspect of the law expired, but the ability to use tax credits was extended.

So what does that mean for employers in 2021?

The emergency paid “sick leave” and expanded “family and medical leave” requirements of the FFCRA are no longer mandated as of December 31, 2020.  That does not mean employers are not obligated to pay for time taken before 2021.  Employers can still be sued for violating these provisions while they were in effect.  What it does mean is that, unless new legislation is passed, an employee is not automatically entitled to FFCRA leave after December 31, 2020. However, employers may voluntarily decide to extend and provide FFCRA leave into 2021. Before you decide to extend, take note of the limitation on tax credits (discussed below).

So I don’t have to pay employees if they are out sick with COVID-19?

Not necessarily, your company sick leave policies will apply.

What did happen in December, 2020?

H.R. 133: Consolidated Appropriations Act, 2021(also referred to as ‘The Relief Bill’) was signed into law on December 27, 2020.  While the law addresses a large number of topics, for the purposes of this article we are focusing on Section 286 of the Relief Bill (“Extension of Credits for Paid Sick and Family Leave”).

Although FFCRA leave is no longer mandated, the Relief Bill allows employers another calendar quarter of paid leave tax credits and amends certain provisions of the FFCRA to allow employers to take a payroll tax credit for providing emergency paid “sick leave” and paid expended “family and medical leave” into the first quarter of 2021 for two purposes: (1) to recover costs of providing required FFCRA leave in 2020, and (2) to voluntarily provide paid emergency “sick leave” and emergency “family and medical leave” through March 31, 2021.  In other words: (1) if an employee took FFCRA-required leave in 2020, then the employer can take the appropriate tax credits in 2021; and (2) if an employer elects, voluntarily, to provide paid leave to an employee for an FFCRA-qualifying reason in Q1 of 2021, then it can take payroll tax credits for providing such paid leave.

For those following The Department of Labor’s FFCRA Guidance, the DOL published two new questions and answers related to the expiration of the FFCRA:

  1. I was eligible for leave under the FFCRA in 2020 but I did not use any leave. Am I still entitled to take paid sick or expanded family and medical leave after December 31, 2020? (added 12/31/2020)

Your employer is not required to provide you with FFCRA leave after December 31, 2020, but your employer may voluntarily decide to provide you such leave. The obligation to provide FFCRA leave applies from the law’s effective date of April 1, 2020, through December 31, 2020. Any change to extend the requirement to provide leave under the FFCRA would require an amendment to the statute by Congress. The Consolidated Appropriations Act, 2021, extended employer tax credits for paid sick leave and expanded family and medical leave voluntarily provided to employees until March 31, 2021. However, this Act did not extend an eligible employee’s entitlement to FFCRA leave beyond December 31, 2020.

Employers with questions about claiming the refundable tax credits for qualified leave wages should consult with the IRS.  Information can be found on the IRS website (http://www.irs.gov/coronavirus/new-employer-tax-credits).

  1. I used 6 weeks of FFCRA leave between April 1, 2020, and December 31, 2020, because my childcare provider was unavailable due to COVID-19. My employer allowed me to take time off, but did not pay me for my last two weeks of FFCRA leave. Is my employer required to pay me for my last two weeks if the FFCRA has expired? (added 12/31/2020)

Yes. WHD will enforce the FFCRA for leave taken or requested during the effective period of April 1, 2020, through December 31, 2020, for complaints made within the statute of limitations. The statute of limitations for both the paid sick leave and expanded family and medical leave provisions of the FFCRA is two years from the date of the alleged violation (or three years in cases involving alleged willful violations). Therefore, if your employer failed to pay you as required by the FFCRA for your leave that occurred before December 31, 2020, you may contact the WHD about filing a complaint as long as you do so within two years of the last action you believe to be in violation of the FFCRA. You may also have a private right of action for alleged violations.

 

If you have questions about how the Relief Act impacts your business or would like to schedule an initial consultation, please contact Navigant Law Group, LLC at (847) 253-8800 or email us at info@navigantlaw.com.

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