Telemedicine Appointments are Sufficient to Establish a Serious Health Condition for FMLA Leave

On December 29, 2020, the U.S. Department of Labor Wage and Hour Division (WHD) issued Field Assistance Bulletin 2020-8 regarding the use of telemedicine in establishing a “serious health condition” under the Family and Medical Leave Act (FMLA).

Picture1The FMLA provides eligible employees of covered employers with unpaid, job-protected leave for specified family and medical reasons. Eligible employees may take up to 12 workweeks of leave in a 12-month period for, among other things, a serious health condition that makes the employee unable to perform the essential functions of his or her job, or to care for the employee’s spouse, son, daughter, or parent with a serious health condition. See 29 U.S.C. § 2612(a)(1)(C)-(D); 29 CFR § 825.112(a)(3)-(4).

Under the FMLA, a “serious health condition” is an “illness, injury, impairment, or physical or mental condition that involves” either: (1) “inpatient care,” such as an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity or any subsequent treatment in connection with such inpatient care; or (2) “continuing treatment by a health care provider.” The FMLA regulations define the term “treatment” to include “examinations to determine if a serious health condition exists and evaluations of the condition.” The regulations also provide that “[t]reatment by a health care provider means an in-person visit to a health care provider.”  The “in-person visit” requirement Continue reading

Things Employers Should Consider as the $15 per hour Minimum Wage Gains Traction

The $15 per hour minimum wage is not a new idea, although a minimum wage increase under the Fair Labor Standards Act has garnered new attention in recent months. Raising the minimum wage was one of President Biden’s campaign promises and both the House and the Senate have re-introduced legislation to raise the federal minimum wage. Some states, like California, Connecticut, Illinois, and New York are already on track to have a $15 per hour minimum wage by 2025. But what does all this mean for employers? According to a recent Congressional Budget Office study increasing the federal minimum wage would raise the wages of at least 17 million Americans. Therefore, employers should begin thinking about how the progressive increase of the minimum wage will impact their resources.

The Fair Labor Standards Act (“FLSA”) dictates the federal minimum wage, rules surrounding overtime pay and hours worked, and recordkeeping requirements. Two types of employers are covered under the FLSA: enterprises and individuals. Enterprises have at least two employees and are (1) those that have an annual dollar volume of sales or business done of at least $500,000 or (2) hospitals and businesses providing medical or nursing care for residents, schools, and preschools, and government agencies. Individuals are employers whose employees are engaged in work that regularly involves interstate commerce. Executive, administrative, and professional employees (including teachers and academic administrative personnel in elementary and secondary schools) are FLSA minimum wage and overtime exempt provided they are paid at not less than $684 per week on a salary basis. These salary requirements do not apply to outside sales employees, teachers, and employees practicing law or medicine. This exception is commonly referred to as the white collar exception. Other minimum wage and overtime exemptions include creative professionals, computer employees, and highly compensated individuals.

If the $15 per hour minimum wage legislation passes, employers may consider making hourly employees who would otherwise be FLSA exempt salaried. There are several benefits to be gained if those employees were correctly classified as minimum wage and overtime exempt. First, predictable wages. Hourly employees who work more than 40 hours per week are entitled to 1.5 times their regular rate of pay for each additional hour worked. If the $15 per hour minimum wage passes, that would be an overtime rate of pay of $22.50 per hour. Salaried white collar employees are not subject to the same overtime pay. Second, the elimination of recordkeeping. Employers must keep a record of all hours worked by their hourly employees. For about the past year, many white collar employees have tele-worked due to the ongoing COVID-19 pandemic. Tele-work has made it challenging for employers to keep track of employee hours worked. Whereas before an employee may have used a daily timeclock located inside the office, now employers have had to come up with creative solutions to comply with the FLSA recordkeeping requirement. With many companies predicting that even after the pandemic tele-work may still be available at least one day a week for all white collar employees, correctly classifying white collar employees as exempt by making them salaried eliminates the need to keep track of employees’ working hours.

Employers who do consider changing their white collar employees from hourly to salaried should exercise caution. The U.S. Wage and Hour Division has outlined specific tests for every exempt employee category and employers do not want to run the risk of misclassifying employees as it could result in a lawsuit. Furthermore, employers should make sure that the decision is made equitably so as not to run afoul of other labor and employment laws like Title VII and The Americans with Disabilities Act. Ultimately, the decision of whether to make an otherwise FLSA exempt hourly employee salaried should take into account the employer’s resources and be made with the assistance of legal counsel.

President-Elect Biden Announces Boston Mayor Marty Walsh as his Choice for Secretary of Labor

By: Kara M. Maciel, Eric J. Conn, and Beeta B. Lashkari

On January 7, 2021, President-elect Joe Biden announced his much-awaited choice for nominee to serve as Secretary of Labor, selecting Boston Mayor Marty Walsh.  Mayor Walsh made his mark as a labor leader, ultimately heading the Building and Construction Trades Council from 2011 to 2013.   Mr. Walsh was also a full-time legislator, serving in the Massachusetts state legislature for some 17 years before being elected mayor in 2014.Picture1

If confirmed, it is expected that Mayor Walsh’s close personal friendship with President-elect Biden will elevate the importance of the Labor Department in President Biden’s cabinet, allowing a Secretary Walsh significant influence in the Administration.    

Mayor Walsh’s strong ties to organized labor and his selection follows through on President-elect Biden’s campaign promise to give unions a stronger voice in labor policy in his Administration. Mayor Walsh has a reputation as a “pragmatic dealmaker,” and he is respected in Massachusetts by both business and labor for his reasonable approach to solving labor and employment issues facing the state.

Of the many issues likely to be tackled by the Labor Department over the next few years, one of the first and most impactful will be the likely issuance of a federal COVID-19 Emergency Temporary Standard by OSHA.  President-elect Biden has pledged to have OSHA quickly address this issue.  If a federal ETS is promulgated, it would replace the current Administration’s approach, which has relied heavily on CDC and agency guidance, as well as existing OSHA standards, like the respiratory protection standard and recordkeeping rules, to issue citations.  With respect to COVID-19, under Mayor Walsh’s leadership, the City of Boston implemented a broad array of sector-specific workplace instructions for businesses designed to limit the spread of the virus, including requirements for face coverings, social distancing, building capacity limits, staggered work shifts, and worksite ventilation improvements.

As Labor secretary, Mr. Walsh would be responsible not just for worker protection standards, but also for renewed paid family-leave benefits and expanded access to unemployment insurance, among myriad other responsibilities.  Likewise, it is expected that DOL under a Biden Administration would rescind a just-finalized regulation issued over the appropriate test for classifying whether workers are independent contractors or employees. 

Republicans like House Education and Labor Committee Ranking Member Rep. Virginia Foxx (R-NC) are already pushing back on President-elect Biden’s selection, warning that Mr. Walsh’s labor background signals that he will try to impose “punitive one-size-fits-all regulations” on employers.  Nonetheless, based on his track record, it is expected that Mr. Walsh may make efforts to force compromise between business and labor rather than taking a more ideological, anti-business approach that would likely have been followed had President-elect Biden nominated Senator Bernie Sanders as Labor Secretary, who is said to have wanted the post.  

While his selection awaits the Senate confirmation process, Mr. Walsh could be confirmed by a simple majority vote that would not require backing from a single Republican senator. 

Announcing Conn Maciel Carey’s 2021 Labor and Employment Webinar Series

2021 Labor and Employment Webinar Series

The legal landscape facing employers seems as difficult to navigate as it has ever been.  Keeping track of the ever-changing patchwork of federal, state and local laws governing the workplace may often seem like a full-time job whether you are a human resources professional, in-house attorney or  business owner.  Change appears to be the one constant.  As President Trump’s Administration comes to an end, employers will continue to closely track the changes taking place at the NLRB, the DOL and the EEOC.  At the same time, a number of states will continue introducing new laws and regulations governing workplaces across the country, making it more important than ever for employers to pay attention to the bills pending in the legislatures of the states where they operate.  This complimentary webinar series will focus on a host of the most challenging and timely issues facing employers, examining past trends and looking ahead at the issues most likely to arise.

Conn Maciel Carey’s complimentary 2021 Labor and Employment Webinar Series, which includes (at least) monthly programs put on by attorneys in the firm’s national Labor and Employment Practice, is designed to give employers insight into legal labor and employment developments.

​To register for an individual webinar in the series, click on the link in the program description below. To register for the entire 2021 series, click here to send us an email request, and we will register you. If you missed any of our past programs from our annual Labor and Employment Webinar Series, click here to subscribe to our YouTube channel to access those webinars.


2021 Labor & Employment Webinar Series – Program Schedule

California Employment Law Update for 2021

Wednesday, January 20th

Marijuana, Drug Testing and Background Checks

Tuesday, July 13th

COVID-19 Vaccine: What Employers Need to Know

Thursday, February 11th

Employee Misconduct Defense & Employment Law

Wednesday, August 11th

Employment Law Update in D.C, MD, VA and Illinois

Wednesday, March 24th

Employee Handbooks, Training and Internal Audits

Tuesday, September 21st

Withdrawal Liability Pensions

Wednesday, April 14th

NLRB Update

Tuesday, October 19th

ADA Website Compliance Issues –  Best Strategies for Employers

Tuesday, May 18th

Avoiding Common Pitfalls: Non-Compete, Trade Secrets and More!

Wednesday, November 10th

What to Expect from DOL Under the Biden Admin.

Wednesday, June 16th

Recap of Year One of the Biden Administration

Tuesday, December 14th

   

See below for the full schedule with program descriptions, dates, times and links to register for each webinar event.

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What Employers Need to Know About Mandatory COVID-19 Vaccines

With the availability of a safe, effective COVID-19 vaccine edging closer and closer, employers understandably have a number of questions regarding their role in the workplace – whether and when they can require a vaccination, what exceptions are required in a mandatory vaccination program, and whether they should require (as opposed to encourage and facilitate) the COVID-19 vaccine for employees once it becomes available.  This summer, the World Health Organization reported that nearly 200 potential vaccines were currently being developed in labs across the world, and as of mid-October, disclosed that more than 40 had advanced to clinical stage testing on humans.  Drug manufacturers estimate that a vaccine will be ready and approved for general use by the end of this year, although logistically not ready for widespread distribution until mid-2021.  Indeed, just over the past couple of weeks, Pfizer and Moderna have made promising announcements regarding the results of their clinical trials.  Namely, on Monday, November 9, 2020, Pfizer and BioNTech announced that a vaccine candidate against COVID-19 achieved success in the firm interim analysis from the Phase 3 study.  The vaccine candidate was found to be more than 90% effective in preventing COVID-19 in participants without evidence of prior SARS-CoV-2 infection in the first interim efficacy analysis.  According to the announcement, submission for Emergency Use Authorization (EUA) to the U.S. Food and Drug Administration (FDA) is planned for soon after the required safety milestone is achieved, which is currently expected to occur in the third week of November.  Additionally, as reported by the National Institutes of Health (NIH) on November 16, 2020, there have been promising interim results from a clinical trial of a NIH-Modern COVID-19 vaccine.  An independent data and safety monitoring board (DSMB) reported that the vaccine candidate was safe and well-tolerated and noted a vaccine efficacy rate of 94.5%.  Accordingly, as the reality of a vaccination nears, employers are inquiring whether they can and should mandate the vaccine for their employees.

  1. Can Employers Require Employees to Take the COVID-19 Vaccine?

As a threshold matter, it should be noted that, according to a member of the federal advisory panel on immunizations that will be making recommendations to the CDC on who should get the first doses, vaccines authorized under the FDA’s emergency use authority, as these COVID-19 vaccinations will be at the start, cannot be mandated.  Any COVID-19 vaccine brought to market under an EUA instead of the normal non-emergency approval process will, by necessity, lack long term safety data.  Once a vaccine receives an EUA from FDA, FDA has authorized the vaccine for use according to the terms of the EUA.

In general though, employers can require vaccination as a term and condition of employment, but such practice is not without limitations, nor is it always recommended.  Although the issue is only now coming to the forefront of our national conscience, mandatory vaccinations in the workplace are not new, and have been particularly prevalent among healthcare providers.  Some variability exists under federal law and among federal agencies, but for the most part, mandatory vaccination programs are permissible, as long as employers consider religious accommodation requests under Title VII of the Civil Rights Act of 1964 (Title VII) and medical accommodation requests under the Americans with Disabilities Act (ADA).

OSHA has long taken the position that employers can require employees to take flu and other vaccines, but emphasizes that employees “need to be properly informed of the benefits of vaccinations.”  In the healthcare industry, for example, mandatory vaccination programs for employees are common.  Indeed, several states have laws that require healthcare employers to offer the vaccine or to ensure that employees receive it (with certain exceptions).  The CDC has long recommended that all healthcare workers get vaccinated, including all workers having direct and indirect patient care involvement and exposure.

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Court Strikes Down Recent Joint Employer Rule

On September 8, 2020, a New York federal judge struck down most of a U.S. Department of Labor (“DOL”) rule that had narrowed the definition of “joint employer” by limiting when multiple businesses would be liable to the same worker under federal wage and hour law.  The lawsuit was filed by the attorneys general of 17 states and Washington, DC, who argued that the narrowing of the standard would eliminate important labor protections for workers and would make it more difficult to hold companies liable for violations by franchisees and contractors of minimum wage and overtime laws.

Brief History of the Joint Employer Rule

Although the Fair Labor Standards Act (“FLSA”) does not explicitly reference joint employment, the DOL has long recognized that workers may have multiple employers when employment by one employer is “not completely disassociated” from employment by the other employer.  The DOL has periodically updated this definition via informal guidance, most recently in 2014 and 2016, when it issued bulletin memorandums directing agency investigators to look past employers’ control over workers to the “economic realities” of their relationship.

The DOL rescinded those memorandums soon after President Trump took office in 2017 and proposed the first update to its formal joint employment regulations in decades, which was finalized in January 2020.  January’s final rule emphasized a company’s control over its workers, saying joint employment hinges on the division of powers to (1) hire and fire; (2) supervise and schedule; (3) set pay; and (4) maintain employment records.

The DOL’s attempt at narrowing the joint employer standard was seen as business-friendly and anti-labor, as labor advocates argued that employers who have franchise relationships or rely on subcontractors benefited from the new standard.  As a result, in February 2020, New York and 17 other states sued to block the rule, accusing the DOL of exposing workers to wage theft by narrowing its definition of joint employment further than the FLSA allows.

New York Federal Court Ruling

On September 8, 2020, Judge Gregory Woods of the U.S. District Court for the Southern District of New York issued a ruling striking down the majority of the new rule and agreeing with New York and the other 17 states who had challenged the rule.

According to Judge Woods, the new rule was “arbitrary and capricious” because the DOL failed to justify its departure from its prior interpretations of the joint employer rule or account for its costs to workers, which the states estimated at more than $1 billion annually. Judge Woods also ruled that the Trump administration’s changes to the joint employer doctrine were too narrow since they required a company to actually exercise control in the workplace instead of simply having the right to exercise control, and the DOL did not adequately explain why it disregarded evidence that narrowing its joint employment test would expose workers to wage theft.  Additionally, Judge Woods found that the new rule conflicted with the plain language of the FLSA because it ignored the statute’s broad definitions. 

As a result, Judge Woods vacated the portion of the rule applying to “vertical” employment relationships, in which workers for a staffing company or other intermediary are contracted to another entity.  However, he let stand the portion applying to “horizontal” relationships, in which a worker is employed by two “sufficiently associated” businesses.

Impact to Employers

It is likely that the DOL will appeal this ruling to the U.S. Court of Appeals for the Second Circuit, so this will not be the last time that a court opines on this issue.  In the meantime, however, there is no disputing that this ruling (especially if upheld on appeal) is a blow for the business community, which had urged the Trump administration to narrow the federal joint employment doctrine that had been expanded under the Obama administration. 

Due to this court ruling, employers now have less certainty about their relationship with one another in the joint employment context.  Thus, if any employers have revised their contracts with staffing agencies, subcontractors, or other intermediary employers since January, they should review those contracts to make sure they do not violate the joint employment standard that was in place prior to January.  And, until an appeal is ruled on or further guidance from the courts is issued, employers should adhere to the more expansive definition of joint employment when drafting contracts with staffing agencies or other subcontractors going forward.  

As always, we will keep you apprised of future developments in this ever-changing area of the law.

[BONUS WEBINAR] HR and Workplace Safety Implications of COVID-19 for Brewers, Distillers, and Winemakers

On Monday, March 30, 2020 at 1 PM Eastern, join Eric J. Conn, Kara M. Maciel, and Daniel C. Deacon of the law firm Conn Maciel Carey for a complimentary webinar: “HR and Workplace Safety Implications of COVID-19 for Brewers, Distillers, and Winemakers.”

There have been a number of significant developments related to the 2019 Novel Coronavirus – now officially called “COVID-19.” The World Health Organization declared a global pandemic, President Trump initiated a National Emergency Order, and state and local officials have been ordering shutdowns of non-essential businesses and mandatory shelter-in-place orders. Furthermore, Congress passed emergency legislation that temporarily requires employers to provide paid sick and family leave and the Department of Labor has issued guidance on how employers should comply with employment and workplace safety laws.

Local craft breweries, distilleries, and wineries have been deemed essential businesses under current federal and state directives, such as the Virginia and Maryland governors March 23, 2020 orders, but the traditional way of doing business has changed considerably. These changes have raised numerous questions regarding how small businesses can successfully operate while complying with these new requirements.

During this webinar, participants will learn about recent developments, new federal legislation, EEOC, CDC and OSHA guidance, including:

  • Federally required Paid Family Leave and Paid Sick Leave;
  • Strategies for employers to prevent workplace exposures while complying with Federal and State labor and employment laws;
  • OSHA’s guidance about preventing workers from exposure to COVID-19 and related regulatory risks;
  • FAQs for employers about managing the Coronavirus crisis in the workplace;
  • Federal and state orders concerning essential businesses and financial assistance; and
  • Tips to maintain a thriving brewery, distillery, or winery while shifting business models.

​Click here to register for this webinar.

For additional employer resources on issues related to COVID-19, please visit the Employer Defense Report and OSHA Defense Report.  Conn Maciel Carey’s COVID-19 Task Force is monitoring federal, state, and local developments closely and is continuously updating these blogs with the latest news and resources for employers.

DOL Releases Final Rule for Determining Joint Employer Status

Department of LaborEarlier this week, on January 12, 2020, the U.S. Department of Labor (DOL) announced the release of its final rule revising and updating its regulations interpreting joint employer status under the Fair Labor Standards Act (FLSA).  According to DOL, “The final rule provides updated guidance for determining joint employer status when an employee performs work for his or her employer that simultaneously benefits another individual or entity, including guidance on the identification of certain factors that are not relevant when determining joint employer status.”  The DOL published its Notice of Proposed Rulemaking (NPRM) on April 9, 2019, and received over 12,000 comments within the 30-day comment period.  The final rule becomes effective on March 16, 2020, 60 days after publication in the Federal Register today, January 16, 2020.

As a threshold matter, under the FLSA, an employee working for one company may be found to be the joint employee of a second, independent company, depending on the nature and extent of control over the employee’s work.  Joint employer status is important for numerous reasons, including the fact that a joint employer can be held joint and severally liable for FLSA wage and hour obligations.  In 1958, DOL published an interpretive regulation, 29 C.F.R. § 791, explaining that joint employer status depends on whether multiple persons are “not completely disassociated” or “acting entirely independently of each other” with respect to the employee’s employment. 

Specifically, the regulation provided three situations where two or more employers are generally considered joint employers: (1) where there is an arrangement between the employers to share the employee’s services (e.g., to interchange employees); (2) where one employer is acting directly or indirectly in the interest of the other employer (or employers) in relation to the employee; or (3) where the employers are not completely disassociated with respect to the employment of a particular employee and may be deemed to share control of the employee, directly or indirectly, by reason of the fact that one employer controls, is controlled by, or is under common control with the other employer.  The DOL issued its NPRM out of concern that Continue reading

The Final Overtime Rule Explained:  What Every Employer Must Do Next

By: Kara M. Maciel and Lindsay A. DiSalvo

shutterstock_losing moneyAfter receiving over 116,000 comments on its Proposed Rule to revise the version of the Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees Rule (“Overtime Rule”) promulgated in 2016, the U.S. Department of Labor (“DOL”) has issued a final, revised version of the Overtime Rule.  On September 24, 2019, the DOL announced the final Overtime Rule (“revised Overtime Rule”) through a press release touting the impact of the Rule and highlighting its major changes.  Notably, the press release reflects the significant impact the change in the threshold salary level for the white-collar exemptions is projected to have on employees – lowering the number of employees likely to become eligible for overtime pay from 4.2 million under the 2016 version of the Overtime Rule to 1.3 million.  This is due to the DOL decreasing the salary threshold level from $913.00 per week to $684.00 per week under the revised Overtime Rule.    

Significantly, the Rule takes effect on January 1, 2020 – in just under 100 days.  This timeline does not provide for a phase-in period as advocated for by many commenters and trade associations, and is a much shorter time period than 192 days employers were given in 2016 when the Overtime Rule was promulgated, and the 120 days given in 2004.  As justification for this timeline, the DOL stated that Continue reading

DOL Opinion Letter Clarifies One-Month Representative Period under Section 7(i) Overtime Exemption for Retail and Service Industry Employees

stack of moneyOn September 10, 2019, the U.S. Department of Labor (DOL) issued a new Opinion Letter providing clarity on the Fair Labor Standards Act’s (FLSA)’s Section 7(i) retail or service establishment overtime pay exemption that commissions on goods or services represent more than half an employee’s compensation for a representative period of not less than one month

The FLSA Section 7(i) exempts Continue reading