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As employment law constantly changes, the attorneys at Bean, Kinney & Korman stay up to date on the law as it develops. Our blog topics focus on those changes and what you need to know about them, ranging from severance agreements and the FLSA to social media in the workplace and recent court decisions. If you are interested in having us cover a specific topic, please let us know.

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Deck the Halls (but stay Home) this Holiday Season

The 2020 holiday season is fast approaching. By one recent estimate, nearly 40% of Americans are planning to travel for the holidays, many to visit with family, friends, and loved ones for the first time since the start of the COVID-19 pandemic. Yet there are some parts of the U.S., especially the mid-west and south, that are currently experiencing significant spikes in the rate of COVID-19 infections. The CDC continues to actively discourage travel during the COVID-19 pandemic because “travel increases your chance of getting and spreading COVID-19.”  

The IRS Chief Counsel’s Informal Guidance Clarifies Some Issues Left Open after Notice 2020-65 Regarding the “Payroll Tax Holiday”

In addition to Notice 2020-65 and Instructions to Form 941 which we outlined in our recent blog, the IRS Office of Chief Counsel for employee benefits, exempt organizations and employment tax provided informal but insightful guidance on its monthly IRS payroll industry call held on September 3, 2020. The informal guidance was directed in part toward clearing up confusion that remained even after the IRS’s issuance of Notice 2020-65 over whether, or to what extent, employers could simply ignore the “payroll tax holiday” created by the President’s August 8, 2020, Executive Order.

IRS Releases Instructions to Form 941 Expanding on Prior Guidance on Deferral of Social Security Tax

On October 1, 2020, the IRS released instructions for Form 941 providing additional guidelines for reporting deferred Social Security taxes pursuant to the President's Memorandum (discussed previously on our blog) and IRS Notice 2020-65

Background

On August 8, 2020, the Presidential Memorandum directed the Secretary of the Treasury to use his authority pursuant to section 7508A of the Internal Revenue Code to defer the withholding, deposit, and payment of certain payroll tax obligations.

Virginia Phase 3 Reopening: Will a COVID-19 Liability Waiver Protect Your Business from Legal Risks?

Virginia governor Ralph Northam announced that Phase 3 of the Forward Virginia reopening plan will get underway on July 1, 2020, lifting more of the restrictions on businesses and public activities due to the COVID-19 pandemic. With the Commonwealth’s move toward expanded reopening options, many Virginia businesses, in particular retail and services entities, have become increasingly concerned about the potential of being sued by a customer for damages related to COVID-19 exposure. 

Summer Camps Closed Due to COVID-19? DOL Issues Additional Guidance for FFCRA Leave Eligibility

With the arrival of summer the U.S. Department of Labor (“DOL”) issued some additional guidance last week to clarify when an employee may take leave under the Family First Coronavirus Response Act (“FFCRA”) to care for the employee’s child based on the closure of a summer camp, summer enrichment program, or other summer program for COVID-19-related reasons. The new guidance adds some gloss to the partial answer previously provided by the DOL earlier in the month, when it addressed the availability of FFCRA leave in the context of pending school summer closures, which you can read about here.

Employer Antibody Testing for COVID-19 Violates the ADA, According to New EEOC Guidance

The Equal Employment Opportunity Commission posted an update on June 17, 2020 to its COVID-19 / ADA technical assistance for employers (A.7.) to address whether the ADA permits employers to require COVID-19 antibody or serologic testing before allowing employees to reenter the workplace. The ADA does not permit serologic testing, according to the EEOC. 

Supreme Court Extends Anti-Discrimination Protections to Gay and Transgender Employees

In a landmark decision, the United States Supreme Court ruled today in Bostock v. Clayton County, Georgia that gay and transgender employees are protected by federal anti-discrimination laws.  

Thus, as of June 15, 2020, public and private employers are prohibited from discriminating against lesbian, gay, bisexual, transgender, and queer (LGBTQ) employees on the basis of their sexual orientation or identity.

DOL Final Rule: Employers Can Pay Bonuses and Premium Pay Under FLSA Fluctuating Workweek Compensation

On May 20, 2020, the U.S. Department of Labor (DOL) announced a new final rule clarifying that employers are permitted to pay bonuses or other incentive-based pay to salaried, nonexempt employees whose hours vary from week to week. Such bonus or premium pay, on top of the fixed salary paid to an employee, are compatible with the use of the so-called “fluctuating workweek” method of compensation under the Fair Labor Standards Act (FLSA). The DOL issued the final rule to highlight the flexibility that employers have to provide bonuses or other forms of additional compensation under the fluctuating work method of compensation and to clear up the differing judicial opinions that have resulted from the DOL’s past guidance. 

Can Virginia Employees Still Get Paid Leave Under the FFCRA After Businesses Reopen and Schools Close?

As Virginia businesses are beginning to reopen for work under Governor Ralph Northam’s Order easing many COVID-19-related business restrictions, most public and private school systems in the Commonwealth are beginning to wind down the school year and close for summer break. The dichotomy of openings and closings raises a key question for many workers with school-age children (and their employers): Am I able to continue to qualify for paid sick leave under the Emergency Paid Sick Leave Act (EPSLA) and emergency family and medical leave under the Emergency Family and Medical Leave Expansion Act (EFMLEA)?

Virginia Adds a "Ban the Box" Law for Pot Possession

Ban-the-box restrictions have increased in popularity among U.S. states and localities during the last decade. “Ban the box” refers to laws that variously prohibit or restrict employers from requiring applicants for employment to divulge their criminal history through a check box on an application for employment. The theory behind “ban the box” statutes is that they promote hiring practices that give applicants a fair chance and require employers to judge individual job candidates on their merits, instead of automatically disqualifying those who have a criminal history.