Workforce Bulletin

On July 24, 2020, Connecticut Governor Lamont issued Executive Order JJJ (“E.O. JJJ”), which creates a presumption that employees who contracted COVID-19 in the early days of the pandemic contracted it at work and are eligible for workers’ compensation benefits.

Pursuant to E.O. JJJ, there shall be a “rebuttable presumption” that an employee, who makes a claim for benefits under the Workers’ Compensation Act, and who missed one or more days of work between March 10, 2020 and May 20, 2020, inclusive, due to a diagnosis of COVID-19 or symptoms that were diagnosed as ...

While the country remains focused on the COVID-19 pandemic, U.S. employers cannot ignore the ongoing opioid epidemic or how it may affect their workforces.  On August 5, 2020, the Equal Employment Opportunity Commission (“EEOC”) released new guidance addressing the rights of opioid users in the workplace under the Americans with Disabilities Act (“ADA”).[1]  The two question-and-answer documents clarify that while current illegal drug use is not protected, employees who “are using opioids, are addicted to opioids, or were addicted to opioids in the past, but are not ...

Employers that are fiduciaries of participant-directed individual account plans (such as 401(k) plans) subject to the Employee Retirement Income Security Act of 1974, as amended (‘Plans” and “ERISA”, respectively) should be pleased with the position taken by the Department of Labor (“DOL”) in an information letter dated June 3, 2020 (the “Letter”) addressing the use of private equity investments in designated investment alternatives offered in Plans.  The DOL states that, subject to the standards and considerations set forth in the Letter (and summarized ...

On June 15, 2020, and June 24, 2020, New York Governor Andrew Cuomo issued two Executive Orders (“EO”) numbers 202.45 and 205, which address COVID-19 travel-related restrictions. EO 202.45 temporarily modifies New York State’s pandemic-related Sick Leave Law to prohibit employees from receiving paid sick leave benefits if, as of June 25, 2020, they travel to a “restricted state” for non-work related reasons and contract COVID-19. EO 205 (the “Travel Advisory”) imposes a 14-day quarantine requirement on travelers from a “restricted state” entering New York ...

In a recent 5-4 decision, the Supreme Court, in Thole v. U.S. Bank N.A., 590 U.S. __ (2020), held that participants in defined benefit pension plans lack standing to sue plan fiduciaries for allegedly imprudent plan investments where the participants continue to receive their full benefits and no imminent risk that they will cease receiving their full benefits appears.

Defined benefit plans—once the staple of employer-sponsored retirement plans but now a diminishing share of that group—guarantee a monthly payment in retirement using a formula based on years of service and ...

In EBSA Disaster Relief Notice 2020-01, “Guidance and Relief for employee Benefit Plans Due to COVID-19 (Novel Coronavirus) Outbreak” ( “Notice”), the DOL provided sponsors of defined contribution plans subject to ERISA relief from DOL enforcement action for failure to timely forward participant contributions and loan repayments to the plan during the period from March 1, 2020, and to the 60th day following the announced end of the National Emergency.   This DOL relief, however, appears to be limited to ERISA violations and does not appear to provide protection from the ...

Plan participants and their beneficiaries may now have extra time to exercise some of their rights under the employee benefit plans in which they participate.  On April 28, 2020, the Department of Labor, the Internal Revenue Service, and the Department of the Treasury issued a joint notice extending certain timeframes applicable to employee benefit plans. The joint notice was published as a final rule in the Federal Register on May 4, 2020 (“Final Rule”), issued pursuant to Section 518 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), as recently ...

As the COVID-19 state of emergency continues, businesses are implementing and considering a variety of employee-related measures to manage the impact of the crisis. While some businesses may avail themselves of payroll protection programs and loans to maintain the status quo, others may be faced with having to implement reductions-in-force (RIFs), furloughs and layoffs.  Added to this, employers may be faced with larger numbers of leaves of absence both because of COVID-19-related health and family care reasons, but also when certain workers have been called to duty.  The ...

During this global health emergency, many employers are facing the necessity of curtailing operations and imposing temporary layoffs or furloughs with their workforce.  As a critical consideration, employers have been asking whether and to what extent they may permit group health care coverage to continue during a period of temporary layoff or furlough.

The following questions and answers provide some general guidelines and legal issues to consider in deciding whether to extend group health coverage during a temporary layoff or furlough.

What do we mean by temporary layoffs or ...

Fiduciaries of employee benefit plans subject to the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) that appoint investment managers (“Appointing Fiduciaries”) will be interested in the opinion of the U.S. District Court for the Western District of Pennsylvania in Scalia v. WPN Corporation, et al (“WPN”) regarding their duty to monitor investment fiduciaries.  Given the potential risk related to a breach this fiduciary duty, the WPN opinion is likely to be an important one for Appointing Fiduciaries.

In WPN, the Department of Labor alleged ...

Our colleagues Jeff Landes, Jeff Ruzal, and Adriana Kosovych are featured on Employment Law This Week - Predictive Scheduling Laws, the New Normal? - Deep Dive Episode speaking on predictive scheduling laws and the impact on business. Taking the guesswork out of scheduling for wage workers is an attractive proposition for regulators. Laws that require employers to publish employee work schedules a certain amount of time in advance so that employees (especially those in the hospitality and retail industries) can have greater flexibility and work-time predictability to deal ...

Financial institutions and advisers that manage retirement plan assets and are subject to the regulations of the Department of Labor (“DOL”) under the Employee Retirement Income Security Act of 1974, as amended, (“ERISA”) regarding fiduciary duties (the “Fiduciary Rule”) may also be subject to state law violations for failure to comply with the Fiduciary Rule. The Enforcement Section of the Massachusetts Division of the Office of the Secretary of the Commonwealth (the “Massachusetts Enforcement Section”) filed an administrative complaint (the ...

On November 2, 2017, three Republican Representatives, Mimi Walters (R-CA), Elise Stefanik (R-NY), and Cathy McMorris Rodgers (R-WA), introduced a federal paid leave bill that would give employers the option of providing their employees a minimum number of paid leave hours per year and instituting a flexible workplace arrangement. The bill would amend the Employee Retirement Income Security Act (“ERISA”) and use the statute’s existing pre-emption mechanism to offer employers a safe harbor from the hodgepodge of state and local paid sick leave laws. Currently eight ...

In Prince v. Sears Holding Corp., the United States Court of Appeals for the Fourth Circuit (the “Fourth Circuit” or the “court”) sets forth a test that should assist sponsors of employee benefit plans covered by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) in identifying when participants’ state law claims may be removed to the federal courts.  The Fourth Circuit offers a clear explanation of complete preemption under Section 502(a) of ERISA and the test to determine if Section 502(a) completely preempts a state law claim.

Summary of the ...

Based on recent guidance from the Department of Labor (the “DOL”), many sponsors of employee benefit plans subject to the Employee Retirement Income Security Act of 1974, as amended (“ERISA Plans”) should have additional comfort regarding the impact of the conflict of interest rule released by the DOL in April 2016 (the “Rule”) on their plans. Even though it is widely expected that the Trump administration will delay implementation of the Rule, in mid-January 2017, the DOL released its “Conflict of Interest FAQs (Part II – Rule)”, which addresses topics relevant ...

Our colleague Sharon L. Lippett, a Member of the Firm at Epstein Becker Green, has a post on the Financial Services Employment Law blog that will be of interest to many of our readers in the technology industry: “New DOL FAQs Provide Additional Guidance (and Comfort) for Plan Sponsors.”

Following is an excerpt:

Based on recent guidance from the Department of Labor (the “DOL”), many sponsors of employee benefit plans subject to the Employee Retirement Income Security Act of 1974, as amended (“ERISA Plans”) should have additional comfort regarding the impact of the ...

Our colleague Sharon L. Lippett, a Member of the Firm at Epstein Becker Green, has a post on the Financial Services Employment Law blog that will be of interest to many of our readers in the retail industry: “New DOL FAQs Provide Additional Guidance (and Comfort) for Plan Sponsors.”

Following is an excerpt:

Based on recent guidance from the Department of Labor (the “DOL”), many sponsors of employee benefit plans subject to the Employee Retirement Income Security Act of 1974, as amended (“ERISA Plans”) should have additional comfort regarding the impact of the conflict of ...

Advisers and financial institutions that are compensated based on a fixed percentage of the value of assets under management may want to reconsider that compensation methodology as it could require compliance with a prohibited transaction exemption, such as the Best Interests Contract Exemption (the “BIC Exemption”), which is a component of the fiduciary rule issued by the Department of Labor (the “DOL”) in April 2016 (the “Final Rule”).  While stating in the recently published “Conflict of Interest FAQs” (the “FAQs”) that the ongoing receipt of a fixed ...

By Michelle Capezza (Member of the Firm, Epstein Becker Green) and Howard Gerver (President, ACA Managed Services)

As employers prepare the Affordable Care Act information reporting filings for the 2016 year that will be due in 2017 (notably the 1094/1095 B&C), the good faith standard of compliance, and the potential for inaccuracies, is no longer available.  In order to seek a waiver of penalties for the 2016 filings made in 2017, an employer will need to meet a standard of reasonable cause and no willful neglect.  With this standard, an employer must show that there are significant ...

Today, Law360 published our article “Considering Best Data Practices for ERISA Fiduciaries.” (Download the full article in PDF format.)

In this article, we outline steps that ERISA plan fiduciaries can take to develop a policy concerning protection of plan data and prudent selection and monitoring of plan service providers who handle PII.  Benefit plan service providers, including technology-based outsourcing companies, should also consider these important guidelines and implement the appropriate safeguards to protect against infringement of plan and participant ...

By: Anna Kolontyrsky and Jeffrey Landes

As summer internship season approaches, financial service employers should confirm that their internship programs comply with all relevant laws, including the requirements of the Fair Labor Standards Act (“FLSA”) and applicable state laws.  Ascribing the term “intern” to a college or postgraduate student working for an employer for a short duration during the summer months does not automatically exempt the employer from federal and state minimum wage and overtime requirements. Unless the position meets certain statutory and ...