KMK Law Management Rights Blog

As the COVID-19 threat lingers and businesses look for ways to protect their employees, there has been a lot of talk about contact tracing in the workplace.  As the name suggests, contact tracing is a process of determining who an infected individual has had contact with and possibly exposed to a disease. This is not a new process and in the past has been done by interviewing people to create lists of exposed individuals who could be warned or isolated.  With modern technology, there are a lot more options, some of which employers are considering using in the workplace.

Yesterday, the U.S. Supreme Court issued its decision in Bostock v. Clayton County, Georgia, a new landmark ruling clarifying that Title VII of the Civil Rights Act of 1964—which prohibits workplace discrimination—applies to discrimination based upon sexual orientation and gender identity.

As businesses begin the process of re-opening, many are finding that due to changed conditions, they are overstaffed. One possible solution to this problem is a reduction in force (RIF). In planning a RIF, there are a great many factors for employers to consider in the current environment, including the points listed below.

Today, the DOL announced publication of a final rule that expands the ability of retirement plans to deliver participant disclosures online or via email by establishing a new, voluntary safe harbor that allows the use of electronic media as a default for participant disclosures. The final rule is in response to the previously reported October, 2019 proposed rule which allowed plan administrators to notify retirement plan participants that required disclosures, such as SPDs, will be posted on a website. Here are some key points of the final rule:

As employers bring employees back into the workplace, many are considering various forms of testing as a means to promote employee safety. While some forms of testing are fairly straightforward, such as taking employees’ temperatures, laboratory testing for COVID-19 is not as simple. 

In Notice 2020-29 released on May 12, 2020, the IRS provides expanded options for participants with respect to 2020 mid-year election changes and also provides increased flexibility to apply unused amounts in health FSAs to medical care expenses incurred through December 31, 2020, and unused amounts in dependent care assistance programs to dependent care expenses incurred through December 31, 2020.  Although the temporary relief under Notice 2020-29 was issued in response to the COVID-19 health emergency, the relief is not limited to individuals affected by the pandemic. Specifically:

On May 4, 2020, the IRS issued Q&As on the coronavirus-related distribution and loan provisions added by Section 2022 of the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”). Section 2022 of the CARES Act (discussed in the March Monthly Minute) temporarily:

As Ohio businesses prepare to re-open, a question that has frequently come up is what to do about employees who refuse to return to work. We are referring to employees who are not sick or under any quarantine orders but do not want to return to work. Their reluctance is usually based on (1) fear of being exposed to COVID-19, (2) a lack of childcare because schools and daycares are closed or social distancing with nannies or other family members, or (3) making more money by staying home and collecting unemployment than they would by returning to work. 

Yesterday, the Governor issued guidance for the partial re-opening of Ohio’s economy.  The guidance includes specific directions for employers whose employees will be returning to work in several business sectors. 

Last week I wrote about a number of ongoing COVID-19 issues for employers to consider.  The issue of trade secrets in the current environment is also worth considering.  I would wager that in my twenty plus years of practicing employment law, there has never been a time when employers’ trade secrets are less secure than they are right now.  Everyone was caught off guard by the pandemic and businesses had to react to maintain operations, often by allowing telework on an unprecedented level.