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EMPLOYMENT LAW UPDATE

EEOC issues COVID-19 vaccine guidance

By Mike O’Brien bio

On Dec. 16, 2020, the Equal Employment Opportunity Commission (EEOC) updated its COVID-19 guidance to include a section devoted to vaccinations. The EEOC’s guidance answers these and other COVID-19 vaccine questions:

  • “Is asking or requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry?”
  • “If an employer requires vaccinations when they are available, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a disability?”
  • “If an employer requires vaccinations when they are available, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a sincerely held religious practice or belief?”
  • “What happens if an employer cannot exempt or provide a reasonable accommodation to an employee who cannot comply with a mandatory vaccine policy because of a disability or sincerely held religious practice or belief?”

For the EEOC’s answers to these vaccination questions, and more, see Section K of the EEOC’s COVID-19 guidance, available at the following link: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws | U.S. Equal Employment Opportunity Commission (eeoc.gov).

For additional guidance, and some helpful vaccination policy language, we recommend that you consult SHRM’s COVID-19 Vaccination Resources page here.

Goodbye, FFCRA. We hardly knew you

As the readers of these updates know, Congress enacted the Families First Coronavirus Response Act (FFCRA) in March 2020 (effective April 1, 2020) in response to the COVID pandemic to require that eligible employers (having fewer than 500 employees) provide paid sick leave and extended paid family leave to employees for certain COVID-related work absences. The paid leave mandates of the FFCRA expire on December 31, 2020. We will miss advising our clients on FFCRA compliance, although we expect the memory of the FFCRA will live on in litigation for years to come.

For those saddened by the loss of the FFCRA, take heart in the recently passed Consolidated Appropriations Response Act. This new bill allows eligible employers (again, those with fewer than 500 employees) to voluntarily provide FFCRA paid leave benefits (either Emergency Paid Sick Leave or Expanded FMLA) to employees from Jan. 1, 2021 through March 31, 2021. To be clear, employers are not required to provide paid FFCRA benefits after December 31, 2020.  Additionally, employees who have already exhausted their FFCRA leave entitlements will not receive a refreshed entitlement on Jan. 1, 2021. However, for employees who have not yet exhausted their paid FFCRA benefit, eligible employers may elect to provide paid FFCRA benefits through March 31, 2021. Employers making such an election will be eligible for the dollar-for-dollar FFCRA tax credit through March 31, 2021.

The Consolidated Appropriations Act

On Dec. 27, 2020, President Trump signed into law the Consolidated Appropriations Act, 2021 (the Act), which includes certain tax relief.  The Act’s two primary functions are for government spending and COVID-19 pandemic relief.  Primary tax provisions include:  (i) an additional $600 per qualifying individual of recovery rebate credit payments; (ii) allowing deductions for qualified expenses paid for with Paycheck Protection Program (PPP) loan proceeds that are subsequently forgiven (a reversal of IRS guidance); (iii) paid sick leave and family leave credits extended for wages paid through March 31, 2021; (iv) elimination of surprise billing under group health plans during emergency department treatment; (v) extension of certain tax deductions and credits (some one year, some through 2025, and some are permanent); (vi) repeal of the tuition and fees deduction, but transition to increased income limitations on the lifetime learning credit; (vii) expansion and extension of the employee retention credit under the CARES Act through June 30, 2021; (viii) lowering of the age for in-service distributions from retirement plans for construction workers to age 55 (down from age 59½); (ix) allowance of a full deduction for business meals paid or incurred before Jan. 1, 2023; (x) extension of the above-the-line deduction for charitable contributions for non-itemizers of $300 ($600 if married filing jointly) for 2021; (xi) expansion of the flexible spending and dependent care accounts for 2021; and (xii) disaster relief for 2021 permitting special tax benefits.

Highlights of PPP loan changes

Title III of the Act, called the “Economic Aid to Hard-Hit Small Businesses, Non-Profits and Venues Act,” makes material changes to the PPP enacted under the CARES Act.  Highlights include:  (i) an expansion of loan uses eligible for forgiveness; (ii) a change in the covered period; (iii) a simplified forgiveness application; (iv) certain economic injury disaster loan advances no longer reduce the amount of PPP loan forgiveness; (v) certain group insurance payments as forgivable payroll costs; (vi) future PPP loans capped at $2 million, including the “second draw”); (vii) second PPP loan availability (generally, allowed for employers not employing more than 300 employees and that demonstrate that at least a 25% reduction in gross receipts in any quarter of 2020 relative to the same 2019 quarter); (viii) updated loan forgiveness rules; (ix) added flexibility for increased covered loan amounts; and (x) relief from certain certification requirements.

 

 

 


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