President Joe Biden has nominated Jennifer Abruzzo, an attorney for the Communications Workers of America, to be general counsel of the National Labor Relations Board, further cementing the Administration’s ties to the labor movement. A contentious nomination process is expected as a result of Biden’s terminating the sitting general counsel, Peter Robb.
Although the focus of attention regarding the COVID Relief bill has been on the amount of one-time checks, other provisions of the new law may have long-term impact.
The Pandemic Unemployment Assistance program (PAU), which provides unemployment assistance to independent contractors, gig workers, and self-employed, and the Pandemic Emergency Unemployment Compensation program (PEUC), which funds states to provide up to 13 weeks unemployment benefits to those who have already used all available state benefits, have been extended.
However, the paid sick and family leave benefits provided by the Families First Coronavirus Response Act (FFCRA) have not been extended under the new bill. As of January 1, 2021, employers are not required to provide these supplemental benefits. However, the new act is designed to incentivize employers to use tax credits to underwrite a continuation of these or similar benefits.
Employers should quickly decide if and/or how they intend to utilize this opportunity and communicate it to employees, especially if an employer aims to end the special paid sick and family leave benefits.
Employers should be aware that among the goals of the Biden Administration is an extension of the FFCRA with all changes made retroactive to January 1, 2021. If such a retroactive extension is enacted, employers who stopped offering FFCRA benefits may be faced with having to make back-pay or time-off awards.
Responding to the realities of remote work during the COVID-19 pandemic, the Department of Labor has issued two new guidances that permit employers greater flexibility in using electronic communications to meet posting and FMLA requirements.
In FIELD ASSISTANCE BULLETIN No. 2020-7, DOL permits employers to meet its various posting obligations (FLSA, DB, etc.) by publishing notices on an intranet, via the internet, or by email (or other forms of electronic communications), if employees have routine access to such materials.
In FIELD ASSISTANCE BULLETIN No. 2020-8, DOL sets out the criteria and procedures for using telemedicine as the equivalent of a doctor’s visit for FMLA purposes.
As the Christmas holiday neared and a government shutdown loomed, the opposing factions in Congress reached an agreement on a COVID relief bill. The final bill is a compromise, reflecting the continuing strength of the Republican majority. The bill totals around $900 billion and includes:
- A $300 supplemental unemployment benefit for at least 11 weeks;
- A $600+ stimulus check for qualifying individuals and family members;
- Re-institution of the Paycheck Protection Program with nearly $300 billion in funding and more carefully targeting to small businesses;
- Reimbursement to federal contractors for certain COVID-related paid leave expenses;
- Substantial support for vaccine distribution;
- Funds for some school and public transportation costs
No funds were directly included for state and local government, although unspent funds from some existing programs could be directed for that use. No employer liability protections were enacted and FFCRA leave programs were not extended, ending federal (but not all state) COVID paid leave programs.
Congress is also expected to approve the new budget before they recess.
David Fortney and Nita Beecher will be panel members of the Employment Law Alliance’s (ELA) event, Navigating the Federal Sea Change: The Impact of the 2020 Election on Employers on Tuesday, December 15, 2020 at 12:00 p.m. Eastern.
With the elections now in the rearview mirror, the inauguration of President-elect Biden, and the convening of the new Congress in January, employers are determining how the pending changes in Washington, D.C. will impact their business. In this program, this ELA panel will provide an overview of the expected Congressional and federal agency actions during the final weeks of the Trump Administration and what employers can expect during the Biden-Harris Administration. Both the long-term reversals in prior policies and regulations as well as the near term changes during the Lame Duck period before the January 20th inauguration will be discussed.
Topics to be Discussed:
- Final actions by the Department of Labor and EEOC during the Lame Duck period
- Reversal of the Trump Administration’s Executive Orders, regulations and guidance
- Impact of new administration on EEOC and its Republican CommissionersNew obligations that federal contractors may face including pay data collection
- Planned changes to OSHA and likely Emergency Temporary Standard on COVID-19
- Likely increases to the federal minimum wage
- Expected changes to independent contractor classifications and join employer tests, including the impact on the Gig economy
- Changes at NLRB, enacting PRO Act to make organizing easier and to expand power of labor organizations
- Anticipated changes in employment-based immigration policy and regulations under the Biden Administration
Participating ELA Speakers
Steve Hirschfeld (Moderator)
Hirschfeld Kraemer, LLP
David S. Fortney
Fortney & Scott, LLC
District of Columbia
Henry M. Perlowski
Arnall Golden Gregory LLP
Bond, Schoeneck & King, PLLC
New York – Upstate
Steptoe & Johnson PLLC
West Virginia (Ohio Office)
Melanie Gurley Keeney
Tueth Keeney Cooper Mohan Jackstadt P.C.
Fortney & Scott, LLC
District of Columbia