Legislative Updates

On March 10, the final version of the American Rescue Plan Act of 2021, was approved by Congress, with most of the employer provisions from the original proposal unchanged. As expected, the provision raising the federal minimum wage was excluded from the final relief package. The American Rescue Plan was signed into law by President Biden on Thursday, March 11.

Here is a short summary of numerous law changes:

• COBRA continuation coverage.
• Dependent care flexible spending accounts. The law raises the 2021 contribution limit for dependent care flexible spending accounts to $10,500 for single taxpayers and to $5,250 for married individuals filing separately. The provision raises the exclusion limits for the plan year beginning after Dec. 31, 2020, and before Jan. 1, 2022.
• Modification to the Paycheck Protection Program.
• Veteran Rapid Retraining Assistance Program.
• The extension of federal pandemic unemployment assistance.
• The extension of pandemic emergency unemployment compensation.
• The extension of emergency unemployment relief for governmental entities and nonprofit organizations.
• Employer credits for paid sick and family leave.
• The employee retention credit.

On March 9, the U.S. House of Representatives voted 225-206 to pass H.R. 842, the Protecting the Right to Organize (PRO) Act. If enacted into law, the bill would be the most expansive labor relations legislation since the National Labor Relations Act (NLRA) of 1935.

The legislation would, among other provisions:

• Weaken right-to-work laws in 28 states by permitting unions to require workers at unionized companies to pay dues. Currently, employees in right-to-work states may choose not to pay union dues.
• Greatly expand the definition of "employee" and almost expunge the concept of independent contractor.
• Make it easier to establish that two or more employers are joint employers.
• Prohibit class-action waivers in arbitration.
• Expand damages under the NLRA.

Last April’s EBSA Disaster Relief Notice 2020-01 provided extensions for certain deadlines for COBRA, HIPAA, and claims filing timeframes, effective March 1, 2020. Under the extension, the affected timelines were “paused” until the earlier of the end of the “Outbreak Period” (60 days after the COVID-19 national emergency was declared over) or one year (February 28, 2021).

EBSA issued Disaster Relief Notice 2021-01 clarifying the timeline extensions granted in the earlier Notice.

Individuals and plans with timeframes that are subject to the relief under the Notices will have the applicable periods under the Notices disregarded until the earlier of:

(a)  1 year from the date they were first eligible for relief, or

(b)  60 days after the announced end of the National Emergency (the end of the Outbreak Period).

On the applicable date, the timeframes for individuals and plans with periods that were previously disregarded under the Notices will resume. In no case will a disregarded period exceed 1 year.

On February 27, 2021, the U.S. House of Representatives Passed the American Rescue Plan Act of 2021 (“Biden’s $1.9 trillion stimulus plan”). This bill provides additional relief to address the continued impact of COVID-19 (i.e., coronavirus disease 2019) on the economy, public health, state and local governments, individuals, and businesses.

Specifically, the bill provides funding for:

·         agriculture and nutrition programs, including the Supplemental Nutrition Assistance Program (SNAP, formerly known as the food stamp program);

·         schools and institutions of higher education;

·         child care and programs for older Americans and their families;

·         COVID-19 vaccinations, testing, treatment, and prevention;

·         mental health and substance-use disorder services;

·         emergency rental assistance, homeowner assistance, and other housing programs;

·         payments to state, local, tribal, and territorial governments for economic relief;

·         multiemployer pension plans;

·         small business assistance, including specific programs for restaurants and live venues; and

·         programs for health care workers, transportation workers, federal employees, veterans, and other targeted populations.

The bill also includes provisions that

·         raise the federal minimum wage to $15 an hour by 2025;

·         extend unemployment benefits and related services;

·         provide a maximum recovery rebate of $1,400 per eligible individual;

·         expand and otherwise modify certain tax credits, including the child tax credit and the earned income tax credit;

·         provide premium assistance for certain health insurance coverage; and

·         require coverage, without cost-sharing, of COVID-19 vaccines and treatment under Medicaid and the Children's Health Insurance Program (CHIP).

The bill has now been referred to the Senate. Check back for updates to see if the bill becomes law.

 

On Feb. 25, the U.S. House of Representatives passed the Equality Act, a bill that proposes to amend federal civil rights law to prohibit discrimination against LGBTQ individuals in employment, housing and public schools, among other areas. The U.S. Supreme Court already has interpreted Title VII of the Civil Rights Act of 1964 to prohibit discrimination based on sexual orientation and gender identity, but the Equality Act would enshrine the prohibition in the statutory language and provide broader protections.

The bill has now been referred to the Senate. Check back for updates to see if the bill becomes law.

USERRA Requires Paid Leave if Comparable Leaves Are Paid

Employees who take off work for military duty may be entitled to paid leave from their employers, according to a Feb. 3, 2021, federal appeals court decision. The case, White v. United Airlines, Inc., was brought by a United Airlines pilot whose short leaves from work for Air Force Reserve duty were unpaid, although United paid pilots for other short-term leaves of absence, such as jury duty and sick leave.
 
The 7th Circuit Court of Appeals considered language in the Uniformed Services Employee and Reemployment Rights Act (USERRA) requiring that employees on military leave be provided the rights and benefits generally provided to similar employees on other leaves. Finding that “rights and benefits” included paid leave, the court reinstated the case and sent it back to the lower court for further proceedings.

Importantly, the 7th Circuit noted that White, the plaintiff, must now show that any paid leave of absence provided by United is comparable to any given stretch of military leave. Factors to be considered in this analysis, the court said, are the duration and purpose of the leave, as well as the ability of the employee to choose when to take the leave.

The 7th Circuit Court’s jurisdiction covers Illinois, Indiana and Wisconsin.

Watch for other jurisdictions' interpretations. 

On February 8, 2021, Circuit Judge Christina Klinger ruled on an election contest complaint that Constitutional Amendment A, a 2020 ballot measure that legalized marijuana in South Dakota beginning in 2021, was unconstitutional because it violated the state’s one-subject rule and revised the state’s constitution instead of amending it. The case is expected to be appealed to the South Dakota Supreme Court.

South Dakota Senate Bill 190, entered on February 3, 2021, seeks to revise provisions regarding unfair or discriminatory practices by including "sexual orientation, gender identity, or identification as a Native American Two-Spirit" as protected categories. 

The Department of Labor (DOL) has released a new model Employer CHIP Notice with information current as of Jan. 31, 2021. As a reminder, employers with group health plans that cover participants in states that provide premium assistance subsidies through Medicaid or the Children’s Health Insurance Program (CHIP) are required to notify their employees annually, regardless of the employer’s location.

The DOL’s model notice, which employers may use for this disclosure, is updated periodically to reflect changes in the states that offer premium assistance subsidies, as well as the contact information for those states. Click here for more information.

On January 29, 2021, the U.S. Department of Labor announced that its Occupational Safety and Health Administration (OSHA) issued new worker safety guidanceto:

• Help employers and workers implement a coronavirus protection program; and
• Identify risks that could lead to exposure and contraction;

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.

The guidance is not a standard or regulation, and it creates no new legal obligations. It contains recommendations as well as descriptions of existing mandatory safety and health standards. The recommendations are advisory in nature, informational in content, and are intended to assist employers in recognizing and abating hazards likely to cause death or serious physical harm as part of their obligation to provide a safe and healthful workplace.