Home Posts tagged employers
Features

New Year, Same Virus

By Alexander J. Cerbo, Esq.

As we enter a new year, our lives remain subject to COVID-19 and its variants. With cases surging across the country, vaccination has become a thing of the past as booster shots have become all the rage. Tired, worn out, and frustrated with this seemingly never-ending pandemic, it is important that employers remain vigilant of important COVID-related updates which may impact their workforce and, ultimately, their bottom line.

 

OSHA/CMS Litigation

At the end of 2021, the Occupational Safety and Health Administration (OSHA) and the Center for Medicare and Medicaid Services (CMS) issued vaccine mandates that would have impacted nearly 100 million American workers. The OSHA mandate required employers with 100 or more employees to implement a written policy requiring vaccination or weekly testing. The CMS mandate would have generally required vaccination of employees that work in healthcare facilities which receive Medicare and Medicaid reimbursement.

Alexander J. Cerbo

Alexander J. Cerbo

“It may be advantageous for employers who wish to mandate vaccination to require booster shots.”

In a major win for businesses across the country, the Supreme Court issued a stay on the OSHA mandate, concluding that the agency overstepped its authority as COVID-19 is not strictly an occupational hazard.

The Supreme Court’s stay is not a final ruling on the topic. The OSHA mandate continues to proceed in the lower courts, and the court left the door open for narrower regulations. Also, the court did allow the CMS mandate to proceed. The agency, in a recent memo, advised employers that their healthcare workers must be “fully vaccinated” (either two shots of the Moderna or Pfizer vaccines, or one shot of the Johnson & Johnson vaccine) by Feb. 28.

 

Vaccine Mandates

Besides OSHA and CMS, private employers can implement their own vaccine mandates if they wish. They may want to consider whether they want their employees to be ‘fully vaccinated’ as currently defined, or if they want their employees to be boosted as well. It may be advantageous for employers who wish to mandate vaccination to require booster shots. Early research suggests booster shots decrease the severity of symptoms, allowing those who contract the virus to recover more quickly. This, in turn, will allow employees to return to work sooner. Some exemptions do apply, including religious objections or a disability accommodation.

In addition, employers should continue to stay abreast of any updates relating to state and federal employee/contractor mandates. Gov. Charlie Baker’s executive order issued last August, requiring all state employees to be fully vaccinated, remains in effect, as does the executive order issued by the Biden administration in September requiring vaccination for all federal contractors and subcontractors.

 

At-home COVID Tests and Healthcare Coverage

The U.S. Food and Drug Administration has just authorized use of over-the-counter, at home COVID-19 tests. The departments of Health and Human Services, Labor, and Treasury collectively released FAQ guidance expanding upon existing requirements for group health plans to cover the cost of these tests, so long as they are taken for diagnostic purposes.

This will impose a major financial burden on self-insured employers, as they must now cover the cost of these tests either directly or through subsequent reimbursement. To incentivize direct coverage, group health plans may limit reimbursement from non-preferred pharmacies, or other retailers, to the lesser of $12 per test or the actual cost of the test if the plan provides direct coverage both through its pharmacy network and a direct-to-consumer shipping program.

Further, a group health plan may limit the number of at home COVID tests covered for each participant to no less than eight tests per 30-day period (no limit if the healthcare provider orders or administers the test following a clinical assessment).

As the pandemic evolves, employers need to carefully consider these and other COVID-related updates in order to adapt and operate accordingly.

 

Alexander Cerbo is an attorney who specializes in labor and employment-law matters at the Royal Law Firm LLP, a woman-owned, women-managed corporate law firm that is certified as a women’s business enterprise with the Massachusetts Supplier Diversity Office, the National Assoc. of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council; (413) 586-2288; [email protected]

Features Special Coverage

A Changing Dynamic

The COVID-19 pandemic has changed the business landscape in countless ways — from where and how employees work to how people communicate. It has also prompted businesses large and small to stop, think about that phrase ‘corporate stewardship’ and what it means to them, and perhaps re-evaluate this all-important concept. We put together a panel of local business and nonprofit managers to discuss the broad topic of corporate stewardship and how COVID may have provided new definition — in every aspect of that phrase — to this issue. For businesses, the pandemic has provided an opportunity to revisit the matter of community involvement and often find new and different ways to give back.
For nonprofits, missions have been broadened, and there has some been pivoting, out of both necessity and a desire to serve in different ways. The panelists are: Paul Scully, president and CEO of Country Bank; Theresa Jasmin, chief financial officer at Big Y Foods; Amy Scribner, partnership director at East School-to-Career Inc., a nonprofit that provides internships, or work-based learning opportunities and other career-education initiatives, for students; Jack Verducci, vice president of Corporate Partnership for the Worcester Red Sox; Dexter Johnson, president and CEO of the YMCA of Greater Springfield; and Michelle D’Amore, executive director of Ronald McDonald House. Scully may have set the tone for the discission when he said, “I think the pandemic has been exhausting and aging, but it’s also been reflective, and I think it’s prompting people to be reflective about how to live your life and how to make a difference.”

BusinessWest: Let’s start by getting your take on — and your working definition of — those phrases ‘corporate stewardship’ and ‘being a good corporate citizen.’

Scully: “Country Bank has been around for 172 years, and its legacy for all those years has been the belief that healthy communities thrive. We’re all in business for our companies to do well, but from a community perspective, we need communities that are healthy — healthy economically, heathy demographically, educationally, with regard to healthcare. So giving back has always been a focus here, and in recent years we’ve taken it to a higher level, both with writing checks and having people on the street giving back and being part of the community. And it differs, depending on what the needs are. There can be very significant multi-year pledges — we just pledged $1 million for hunger awareness in June, with $500,000 for food banks in both Central and Western Mass., because if people have good nutrition, healthy communities will thrive — or having 14 people at Habitat for Humanity helping to build a house. It’s a focus that we do big and small.”

Jasmin: “Being involved in the community is part of the fabric of our company; we consider ourselves a family, we have a culture of caring, and we focus on personal connection, whether that’s with our customers, our employees, or throughout the community. And that manifests itself in many different ways, from large donations to capital campaigns to investments in time and talent. For us, though, it’s about relationships and creating strong vibrant communities; that’s what corporate stewardship means to us.”

Scribner: “For our organization, it’s not so much the money; it’s about organizations allowing these students to come in for semester and do a work-based learning opportunity, and that has long been a challenge for us. We’re trying to create a pipeline for employment, and to do that, we need businesses to assist us and open their doors to students. Often, it’s not about just writing a check, but getting involved on a deeper level.”

D’Amore: “We as a nonprofit are always seeking — and grateful to receive — financial support from the community. But we also rely on our volunteer base. Our organization was built on volunteers; it is the foundation of what we do. For us, we’re continuing our outreach and working with the community to ensure that what we receive is supporting the families who are with us — and there are many forms that this support can take.”

Verducci: “Our WooSox Foundation is a new foundation and not heavily funded, but what we do have is a platform to provide valuable and equitable experiences to the community; specifically, we tend to focus on pediatric oncology, recreation, education, and social justice. So while we love to donate the funds that we do have, we tend to be able to do the most good through corporate partners and partnerships within the community.”

BusinessWest: Has the pandemic changed the dynamic when it comes to corporate stewardship, and if so, how?

Jasmin: “What changed was how urgent the need was and the need to move quickly to respond to those needs. We have a pretty structured mechanism for people who are looking for financial assistance. But during the pandemic, that was accelerated because there was a high sense of urgency. For example, within a week of the shelter-in-place order in March of 2020, we gave some sizable donations to each of the five food banks in our operating area because businesses were shutting down, and people were out of work; the social structure to support those people was not in place yet, so food banks were being taxed. We made that gift quickly, and we made a second gift four weeks later when the need was continuing. That’s one of the ways we adjusted — moving more quickly to meet needs.”

Theresa Jasmin

Theresa Jasmin

“What changed was how urgent the need was and the need to move quickly to respond to those needs.”

Scully: “The urgency absolutely was escalated, but so has the dynamic. When I think of the nonprofits I sit on, so many of them rely on not only corporate giving, but some type of event or two over the course of the year. We’ve all been to a million chicken dinners; what I say to my group is that, when the auction is there, bid high and bid often, because that’s what it’s all about. The big piece that we saw was that people weren’t going to events because they weren’t being held. And it was a case of ‘out of sight, out of mind,’ unfortunately. The money was needed, the funding was needed, but the money wasn’t coming in, and yet all of those organizations had a more dire need than is typical because there were so many people impacted by the pandemic. We looked at it and said, ‘yeah, we can stay with our traditional model of what we do, but there’s a big need to step in here.’ When we look at corporate stewardship and how things have changed over the past 20 months, the need has increased exponentially. So many were hoping that this was the year — we all had our calendars ready for events, and then, they had to switch to virtual events, which don’t raise enough money. So the corporate community needs to realize that, even if there isn’t an event, the needs are so great, and they need to get out there and make a difference.”

D’Amore: “From a nonprofit perspective, we had to figure out how we could support our mission differently. When the pandemic was creeping, we were mandated by our global entity, which holds our licensing agreement, that we could no longer accept new families. And when the last of the families went home, we actually turned it around to provide support to frontline healthcare workers. We opened the house to workers at Baystate to give them an opportunity — if they needed a place to stay, if they needed to take a shower or get a cup of coffee. So our team was committed to support healthcare and support our partner hospitals who are there for us all the time. The tables turned a little bit, but we are able to continue to support our mission in this time of need, and you saw many organizations doing similar things. We pivoted and reinvented ourselves.”

Scribner: “Last year was a real struggle for students; 20% of those students in the Commonwealth just fell off the radar. So we had to change our mindset and pivot, just to help these students communicate how they were feeling. We would have speakers come in an talk about that — how they’re dealing with it, how their companies and themselves personally are dealing with COVID and being on Zoom meetings and not being in school and not being at work. Kids, while resilient, really had a tough time; they missed going to work and interacting with people. It’s those little things that we don’t think about — like going to a company or going to UMass on a field trip. We’re slowly getting back to whatever the new normal is. But last year, we had to have an open mindset and be really flexible about what we could do for the students and also about what we can learn from all these experiences and take those best practices.”

Amy Scribner

Amy Scribner

“Last year, we had to have an open mindset and be really flexible about what we could do for the students and also about what we can learn from all these experiences and take those best practices.”

Johnson: “With the pivot in funding that happened when a lot of companies started steering dollars toward COVID-related things, we also steered a lot of what we were doing toward COVID-related things; we were one of the few places that didn’t really close. When childcare was shut down for the Commonwealth essentially, and then an emergency first-responder-type childcare reopened for those working in retail or transportation or hospitals, we pivoted; our centers closed for one week and then reopened as an emergency childcare facility. We did continue to operate during that time, and on the youth-development side, there were still a lot of great opportunities from a funding standpoint to continue to be involved with some of our corporate sponsors that were changing direction and focusing on COVID.”

Verducci: “We essentially became volunteers; we turned our ballpark in Rhode Island, where we were still based until May, into a food-distribution network. Food insecurity became a huge issue in the region, so we were able to partner with Ocean State Job Lot, which would donate the food, and we would use McCoy Stadium as a vehicle to get that food to people who needed it. We also did coat drives, and we turned the park over to the state to become a testing facility. We tried to use our resources to help where it would do the most good. And once we transitioned to Worcester, we again became volunteers, going to Worcester State University to do food drives and coat drives, and most of those partnerships were with our corporate partners that we’ve had long-time relationships with. We all came together and said, ‘how can we do the best thing for the community, and what do we have at our disposal to move quickly in this challenging environment?’”

Jack Verducci

Jack Verducci

“We all came together and said, ‘how can we do the best thing for the community, and what do we have at our disposal to move quickly in this challenging environment?’”

Scully: “It was suddenly about putting on a different pair of glasses and switching gears when it comes to how you do things. It’s all about, as everyone has talked about, switching gears and saying ‘how do we adapt?’ much like we’ve all had to adapt to how we run our businesses remotely and attend meetings via Zoom.”

BusinessWest: What are the lessons we’ve learned from all this, from having to put a different pair of glasses, and how will this carry over into the future in terms of how we look at corporate stewardship and giving back?

Scully: “If we say that this is the end of the pandemic — and that’s a stretch, certainly — I think what all this has done for us is provide reassurance about how just how good people are and that everyone wants to be a part of something greater. We have a big building here, and for a while there, about four of us were here. You weren’t connecting with people. But as soon as the opportunity came for people to come back, not only to the office, but to get involved with volunteering again, they really wanted to. I think the pandemic has been exhausting and aging, but it’s also been reflective, and I think it’s prompting people to be reflective about how to live your life and how to make a difference. I think people want to be part of something greater, so I think that stewardship will be stronger than ever because this has almost been that switch that has prompted us all to rethink what’s important. There’s a silver lining to everything, and sometimes it’s hard to find, but I think this is it.”

Paul Scully

Paul Scully

“If we say that this is the end of the pandemic — and that’s a stretch, certainly — I think what all this has done for us is provide reassurance about how just how good people are and that everyone wants to be a part of something greater.”

Jasmin: “It was reinforcing for us in terms of our viewpoint on our being involved in the community. We took a look at what our philosophy was and really came out with an even greater understanding that these are the pillars we want to focus on. We’re a food company, first and foremost, and one of our pillars is hunger relief and helping with food insecurity. And that was reinforced for us — this is a continuing need, and we should be involved with it. And just in general, it’s also reinforced that we should continue to be involved — that our investment that we’re making in time and money and people is needed and is valuable. What this has taught us is that we need to be invested continuously, so when a crisis occurs, you can react quickly. It’s not something you can develop from scratch. Overall, it was reinforcing.”

Verducci: “I think the pandemic was a catalyst for empathy amongst companies; it was shared experience that was totally unprecedented, so people were empathetic with each other, and they really did understand what was happening with everyone. Instead of people saying ‘maybe not this year’ when we reached out, everyone we contacted over the past 18 months was willing to help in some way. The other thing we realized was that even the best-laid plans are not going to go the way we anticipate, so you need to be flexible and, more importantly, creative, and this will carry forward.”

D’Amore: “As challenging as the pandemic has been, I think a lot of good has come from it in terms of pausing. Whether as an individual, business, or nonprofit, we all took the time to pause, re-evaluate, and say, ‘what’s the need? How can we help each other?’ Sometimes, prior to the pandemic, we were very focused on our own business model or our own mission, and where it was going. But we were all in the same boat essentially wanting to row in the same direction, so we collectively said, ‘how can we do this together?’”

Michelle D’Amour

Michelle D’Amore

“As challenging as the pandemic has been, I think a lot of good has come from it in terms of pausing. Whether as an individual, business, or nonprofit, we all took the time to pause, re-evaluate, and say, ‘what’s the need? How can we help each other?’”

Johnson: “I think the pandemic pushed us [nonprofits] to work closer together in different ways, such as going after joint funding as one large organization rather than individually, so it has definitely had that benefit.”

BusinessWest: Going forward, how do we maintain this new spirit of cooperation, this new sense of urgency, when it comes to giving back?

Jasmin: “One of the things we lost during the pandemic was that personal connection. We missed seeing our colleagues, our families, and people in the community at large; through corporate stewardship and giving back, we can create those personal connections, and people are recognizing how important this is. The community is us, so when you’re giving back to the community, you’re giving back to yourself, your family, your friends, and your co-workers.”

Scully: It starts with all of us — the leaders or organizations — to set the pace. The pandemic may not be over, but I think that what is over is the hunker-down mentality of being locked up at home in the basement on a computer talking to your colleagues all day. It’s time to get on with life. It won’t be the old normal, it will be the new normal, and the new normal is going to be dependent on so many of us to set that tone — that it’s time to get back out there for a Habitat event, with getting over to the Ronald McDonald House to help prepare a dinner when that becomes available to do. It’s dependent on the leadership or organizations to reinforce that tone.”

Scribner: “This pandemic has really allowed people to take time to reflect on their own lives and what’s important to them and their priorities. And when you’re given that time, I think you realize what’s important in life. When it comes to being hunkered down, I think the pandemic provided time and opportunity for people to say, ‘I don’t want to do this anymore; I want to get out, and I want to be part of my community. I want to be part of making a difference.’ People are realizing just how precious things are now, whether it’s shoveling the sidewalk for a neighbor or providing food for a food bank.”

Dexter Johnson

Dexter Johnson

“I think the pandemic pushed us [nonprofits] to work closer together in different ways, such as going after joint funding as one large organization rather than individually, so it has definitely had that benefit.”

Johnson: “In the normal ebb and flow of things, we get hyped up because something’s happened, whether it’s 9/11 or Hurricane Katrina or the tornado — things that bring us together for a short time. And then, life gets back to normal, and human nature tends to make us drift back to how we were. I think COVID is very different … it impacted everyone, every state, every city — we all know someone who has lost their life or lost their job because of it. It’s had a more far-reaching impact than any of those other tragedies, and, hopefully, that will allow it to stick with us and keep that mentality of realizing how fragile life can be.”

George O’Brien can be reached at [email protected]

Features Special Coverage

A New Kind of Challenge

The COVID-19 pandemic has tested area employers in every way imaginable. And soon, it will test many in a way that probably couldn’t have been imagined even a few months ago — vaccine mandates put in place by the Biden administration and set to take effect probably before the end of the year. The mandates are prompting lawsuits, generating questions that are often hard to answer, and creating high levels of anxiety for employers who are already dealing with a host of problems, especially an ongoing workforce crisis.

Amy Royal says she’s seen all manner of new regulations — state, federal, and local — that employers and their HR departments must contend with as they carry out business day to day.

But she speaks for all employment-law specialists — and those HR professionals as well — when she says she’s never seen anything quite like the COVID-19 vaccine mandates either already in effect or soon to be.

The mandates are far-reaching in their impact, in terms of everything from the number of businesses affected to the costs they will have to absorb to the very real possibility of losing more valued employees, said Royal, a principal with the Indian Orchard-based Royal Law Firm, which specializes in employment law, specifically representing employers. She summed up the measures and their bearing on employers with a single word. “It’s exhausting for companies.”

That would be an understatement.

Already, vaccine mandates enacted by states, individual cities and towns, healthcare providers, and private companies are resulting in thousands of people being fired or simply walking off the job. That list includes the football coach and several assistants at Washington State University, more than 100 state troopers in Massachusetts, police officers in countless communities, and a wide range of healthcare workers, especially nurses.

The recent developments raise questions on everything from just how safe many cities now are to which games NBA star Kyrie Irving can actually play in — none at his home court in Brooklyn, for starters.

And the next shoe — a rather large one — is set to drop in this unfolding drama. That would be the Biden administration’s vaccine and testing mandates, the ones affecting companies of more than 100 employees, any business with federal contracts, and federal employees — mandates the administration estimates will impact more than 80 million workers.

“People would be surprised at the array of businesses, both for-profit and nonprofit, that meet that federal-contractor test.”

Royal and other employment-law specialists we spoke with said there are far more businesses in the 413 in those categories than most people would think, and all of them are, or should be, working diligently to prepare for these mandates — which will take effect soon, although exactly when is a question.

Actually, that’s one of many, many questions, said John Gannon, an employment-law specialist with Springfield-based Skoler, Abbott & Presser, who said others include everything from whether employees get paid while they’re getting vaccinated or tested to who pays for those tests, to whether employees who ultimately lose their jobs to these mandates are eligible for unemployment benefits.

Amy Royal says far more businesses and nonprofits in the 413

Amy Royal says far more businesses and nonprofits in the 413 will be impacted by the Biden administration’s vaccine mandate than most people would believe.

“People are asking, ‘what do we do now — what can we do once the mandate is rolled out?’” he said. “They also want to know when it is going to release and how much lead time they’re going to have for compliance. And, unfortunately, we just don’t know the answers to those kinds of questions.”

Meredith Wise, president and CEO of the Employers Assoc. of the NorthEast, agreed, noting, as others did, that the vaccine mandates add new layers of intrigue, challenge, and polarization for employers who have seen more than enough of all three over the past 20 months.

When she talked with BusinessWest, Wise had recently left a roundtable of CHROs — chief human-resource officers — representing companies across the Northeast. The group meets every six weeks to discuss the challenges its members are facing, she noted, adding that the dominant topic of conversation was the new vaccine mandates and what they might mean for companies, especially in the broad realm of employee relations.

“People who have not wanted to get vaccinated may get tired of the testing and may eventually get vaccinated, but be disgruntled about it,” she said, adding quickly that, if employers have to pay the cost of testing — and pay employees while they’re getting tested — then there is little incentive, if any, to get vaccinated.

“There’s still a lot of questions about what the mandates are going to say, how it’s all going to come down, and whether we’re going to lose employees,” she went on, adding that employers may have to pay a steep price for a policy they didn’t implement themselves.

The best advice Gannon and the others we spoke with have for employers and the HR departments is to be as ready as they can be for these mandates and fully understand just what they are up against. This means knowing how many employees are vaccinated (and not) and having a plan in place for meeting the mandates.

Above all else, Wise and the employment-law specialists advise that businesses take the mandates seriously — even if enforcement of its provisions will be extremely difficult, if not impossible — and to be prepared.

 

Taking More Shots

BusinessWest asked a number of area business owners and nonprofit managers who fall under the categories of the Biden vaccination mandates to discuss the measures and what they could mean.

Not surprisingly, none really wanted to talk about it — on the record or even off. Indeed, the subject of vaccinations and the mandates regarding them are a hot-button, polarizing topic, to say the least. Most employers are staying away from it, figuring it’s best not to say anything than delve into a matter drenched in controversy.

Meredith Wise

Meredith Wise

“There’s still a lot of questions about what the mandates are going to say, how it’s all going to come down, and whether we’re going to lose employees.”

That goes for MassMutual, one of the region’s largest employers, with more than 6,000 workers, which offered only this statement from a spokesperson:

“We are waiting for the specifics of the OHSA guidance to be issued, after which we will be able to better evaluate what it will mean for our company and employees. In the meantime, we have begun to prepare by determining how much of our employee base is vaccinated, which is currently approximately 85%. We are also encouraging fully vaccinated employees to begin coming into the office if they are comfortable doing so and on a schedule that makes sense for them. We’ll continue to evaluate our broader return based on the status of COVID-19 as well as guidance from medical experts and government officials to ensure the health, safety, and well-being of our employees.”

With that, the company probably spoke for most employers in the region, who are waiting for OSHA (the U.S. Department of Labor’s Occupational Safety and Health Administration) to offer specifics while also assessing just where they stand with regard to what percentage of their workforce is vaccinated.

Here’s what is known at this juncture. The Biden action plan directs OSHA to issue an emergency temporary standard (ETS) that requires all employers with 100 or more employees to ensure their workers are either fully vaccinated or get tested weekly for COVID-19, Gannon said. Employers will also be required to provide paid time off to employees to get vaccinated and recover from any side effects from the vaccine.

Meanwhile, the Biden administration’s plan also includes two executive orders requiring federal employees and federal contractors (and subcontractors) to get vaccinated, regardless of workforce size. There is no weekly testing exception; employees working on or in connection with a federal contract, including subcontractors, must be fully vaccinated by Dec. 8.

And, as noted, there are more companies in the 413 that will be impacted by these measures than most would think. Indeed, while most businesses in this region fit the textbook definition of ‘small’ — under 100 employees — there are hundreds of companies, nonprofits, and institutions that count at least that many workers. That includes healthcare-related agencies, manufacturers, nursing homes, municipal departments, a few banks, and many more. Meanwhile, the provision regarding federal contractors — and subcontractors — brings many more businesses under the auspices of the Biden mandates.

“People would be surprised at the array of businesses, both for-profit and nonprofit, that meet that federal-contractor test,” said Royal, noting that her own firm has had federal contracts at different points in its history. “So this has an impact on a number of organizations up and down the valley — including small businesses and human-service agencies that may provide a service to the federal government in some way and come under the umbrella of being a federal contractor.

John Gannon

John Gannon

“When President Biden first issued his plan in early September, we told people, ‘let’s see what happens over the next 30 days.’ But now, we’re getting to a situation where employers have to begin planning and preparing.”

“It might even be retail-type product that is sold on a military base,” she went on, while detailing the broad scope of these measures. “This definitely has widespread implications.”

Beyond waiting — and perhaps hoping that the measure is delayed, which most experts say is possible but not likely — the best area employers can try to do is be ready, said Gannon, adding that, while it’s anyone’s guess as to just when the OSHA standard for companies with 100 or more employees will be issued, it will almost certainly be released before the end of the year.

“When President Biden first issued his plan in early September, we told people, ‘let’s see what happens over the next 30 days,’” he explained. “But now, we’re getting to a situation where employers have to begin planning and preparing.”

Indeed, the clock is certainly ticking on the Dec. 8 deadline for federal contractors, he noted, adding that anyone who takes a vaccine that requires two shots must wait several weeks after the first shot to get the second. And full vaccination, regardless of whether it’s a one-dose or two-dose vaccine, is not achieved until two weeks after the final dose.

“It can take employees at least 45 days, and that’s if they act as soon as possible, to make sure they’re vaccinated,” Gannon went on. “Meanwhile, employers are going to have to get testing programs in place and provide options for employees on how they get tested weekly if they are opposed to getting vaccinated.”

The logical next step for employers, if they haven’t done it already, is to determine their vaccination rates and thus get a handle on the scope of the problem they’re facing, he added.

“We’ve seen all sorts of numbers, but generally, employers fall somewhere in the 60% to 80% range,” he said. “And you’re allowed to ask people if they are vaccinated or not — several agencies have confirmed that there is nothing unlawful about that. You can’t ask them why, but you can generally survey your workforce population, and that should be the first step.”

 

Compounding the Problems

Flashing back to those days — it might even have been hours — after Biden announced his vaccination mandates, when the phone calls started coming in, Royal said the initial reaction was shock, followed by incredulousness.

“That’s because it represents a whole new layer of challenges for employers when they’ve already been navigating a number of challenges related to the pandemic, or just workforce-related issues,” she explained, adding that the overriding concern, beyond all the planning, logistics, and costs of meeting the new standards, regards the potential loss of valued employees at a time when workers are retiring and resigning at unprecedented rates (see related story on page 61), and replacing them has been increasingly difficult.

“Whether you’re in manufacturing or in human services, or are a professional service, there is a general worker shortage and shortage of prospects,” Royal noted, adding that the mandates, especially the one regarding federal contracts (because there is no provision for testing, only required vaccination), will make a serious problem that much worse.

Wise agreed. While she noted that the vaccine mandates for those companies in the listed categories relieve employers from having to implement such a polarizing policy themselves, it does bring a new and unwanted layer of challenge to the table, especially when it comes to workforce.

“They’re already hurting for staff as it is,” she told BusinessWest. “If they lose employees over this, that’s going to make it even harder for them to meet their customer demands and fulfill their orders.”

But there are other considerations, including the costs attached to all this and uncertainty over whether employers who don’t want to get vaccinated or tested can become eligible for unemployment benefits.

She said there has been no clear guidance on that, but she speculates that, if the federal government issues a mandate and an employee is unwilling to comply with that mandate, then the employee would not be eligible to collect unemployment benefits.

But that’s just one of many questions that remain unanswered at this juncture, she said, adding that employers of all sizes are pondering how to get ready for these mandates, but also just how seriously to take them, especially since the T in ETS stands for temporary.

“Apparently, under OSHA guidelines, unless OSHA makes it permanent, within six months this ETS will expire,” she said, adding that some employers may roll the dice and try to wait this out.

Indeed, while there are steep fines attached to the mandates — up to $13,653 per violation — Wise said some employers are wondering out loud just who is going to enforce all this.

“In my mind, this would be a risk that I, as a business owner, don’t think I’d be willing to take,” she told BusinessWest. “But there’s a piece to this that says, ‘how am I going to get caught?’

“OSHA isn’t going to be able to come in and audit every workplace, so there would probably have to be a complaint filed,” she went on, adding that, if an employee doesn’t want to get vaccinated, he or she is unlikely to file a complaint that their employer is not in compliance.

 

Bottom Line

Like Royal and Gannon, Wise said she’s never seen anything quite like the vaccine mandates when it comes to the many ways they might impact an employer.

“I’ve been in HR for more than 40 years, and I can say that there’s been nothing like this,” she noted. “There’s been a lot of regulations and guidelines that employers have to put in place — certain safety precautions, pay requirements, overtime laws — but there really hasn’t been anything that’s come down that has affected the individual and their bodies like this.”

Indeed, these measures are unprecedented in many respects, and they come at a time when beleaguered employers are already being challenged in every way imaginable.

Only time will tell what happens next, but it’s clear that employers will have their mettle tested even further.

 

George O’Brien can be reached at [email protected]

Employment Special Coverage

Coping with the ‘Great Resignation’

By Sarah Rose Stack

 

You’ve just woken up. As you sip your morning coffee, you open your e-mail and give it a quick glance. Wedged in between your work and personal mail, you have several e-mails with the subject line ‘We’re Hiring’ or ‘Join Our Team.’ You switch over to social media and see that your neighbor just announced she’s left her place of employment for a new opportunity. There are few more posts from friends who are frustrated with their employers’ lack of communication or insistence on returning to the office.

How many ‘We’re Hiring’ signs have you seen or talked about today?

There has been much discussion about the current hiring crisis, and while many thought that this would be resolved once Pandemic Unemployment Assistance ended, that has not been the case. In fact, the Bureau of Labor (BOL) recorded the highest number of people who quit their jobs in August 2021, with 2.9% of people quitting (4.3 million people). This is the highest number of quits since the BOL started recording this data in 2000. Probably even more concerning is that August was the sixth consecutive month of massive quitting numbers.

Coined the ‘Great Resignation’ by Anthony Klotz, a professor at Texas A&M, people are leaving their jobs at record-breaking rates as the pandemic is waning. This is only expected to be amplified as 2021 comes to an end and people reflect on what they want in life. Employees are demanding more from their current and potential employers. Companies should be very careful to pay attention to the change in dynamics if they want to retain or attract new talent to their workforces.

“Employees are demanding more from their current and potential employers. Companies should be very careful to pay attention to the change in dynamics if they want to retain or attract new talent to their workforces.”

As part of my position at Meyers Brothers Kalicka, I assist clients with finding new talent, such as controllers, accountants, HR, marketing, and other administrative professionals, for their organizations. Prior to the pandemic, I would see 50 to 100 applications from people in Western Mass. applying for every posted job opportunity. That number has drastically declined, the geographical representation has widened, and the questions and concerns from potential employees have also significantly changed.

So, what are employees expressing that they want? Here’s a hint: it’s not just about salary. People had a lot of time to reflect during the pandemic about what work means to them and what role they want their careers to play in their overall lives.

 

Work-life Balance

Prior to the pandemic, Americans were obsessed with ‘hustle culture.’ People were happy to rise and grind and wear their burnout like a badge of honor. Perhaps people were too distracted working around the clock to ever consider what they truly wanted. You’ve probably noticed the shift in sentiment in social media from #hustle to the idea that inner peace is the new success.

Working through the pandemic came with its own unique set of stresses. Some workers had to compensate for poorly staffed jobs, while others lost a feeling of security at their jobs, causing them to work even harder to show their value. Indeed recently posted a study that surveyed 1,500 employees about burnout, and a shocking 80% of people said the pandemic made the burnout worse.

As a result, potential employees have been asking:

• What is your company’s view on work/life balance?

• Does management regularly e-mail or call after hours or on weekends?

• Is the schedule flexible if I have a family event or event for my child?

• Do people actually take their paid time off?

According to PR Newswire, “poor work-life balance tops the list of job-seeker deal breakers, ranking above other immediate turnoffs, including lower salary (50%) and a company’s decreasing profits and lack of stability (48%)”.

 

Flexibility and Remote Work

Employees are actively seeking remote or hybrid work opportunities just as many companies are now demanding that employees return to in-person work. Some have even pre-emptively started seeking flexible work opportunities out of fear that their current remote-work situation might change.

Many are expressing that the ability to work from home and have more flexible work schedules in general have helped to prevent burnout. People have enjoyed ditching the morning commute and 5 p.m. rush hour. The returned pockets of time have come with myriad benefits, including more sleep, more time with family before and after work, less wear and tear on vehicles, more time with pets, and an overall more comfortable environment.

It isn’t all hypothetical, either. Stanford conducted a study of 16,000 remote workers over a period of nine months and showed that productivity increased by 13%. Further, with more workers reporting they were happier working from home, attrition rates were cut by 50%.

Time is the only non-renewable commodity, so when employers are demanding that their people return to in-person work, employees are asking themselves, “at what cost?” The most-asked question I have received from potential employees over the last year is: “can this position be done fully or partially remote?” If the answer was no, most candidates politely declined to continue in the application process, presumably in favor of remote opportunities.

I would also attribute the increase of applicants from other regions to the normalization of remote work. I’ve seen applications from all over the country because most people in professional positions are now of the mindset that they can work for anyone, from anywhere.

 

Company Culture and Shared Values

At its core, company culture is its identity. It’s how the company’s values, attitude, approach, and ideals dictate the inner workings of the organization. Generally, this is set and modeled by the leadership and then mirrored by the people within the organization, driving the way the company does everything.

Companies with attractive corporate culture actively value their people in ways that are both tangible and intangible. They may have perks such as food, drink, cocktail hours, paid time off, tuition reimbursement, and professional-development opportunities. More than that, they will also have a solid mentorship program, encourage open communication, speak to each other with respect, and show clear indicators that the work and growth of their people are valued.

As part of corporate culture, shared values are another important consideration for many job seekers today. Whether they are directly impacted by certain causes or not, they are looking to work for companies who have values that align with their own. Employers need to understand that potential employees are doing as much vetting and interviewing of the organization as the organization is doing of them.

Employees want to know what your company culture is like and what your values are. They are asking direct questions such as:

• What is the company’s leadership like?

• Describe the company’s culture.

• Does your company have a diversity, equity, and inclusion (DEI) program?

• How does your company implement its DEI statement?

• How involved is your company in the community?

• How does your company handle discourse among employees?

 

Pandemic Protocols in General

While we all have pandemic fatigue and want the pandemic to be over, there are still so many open issues that need to be faced head-on. Potential employees are very concerned with how companies handle current guidelines regarding masking, social distancing, quarantine, and vaccination.

This would be simple if everyone had the same passionate stance on the subject, but they don’t. Employees tend to be divided into three camps: Those who wants the strictest protocols in place, those who prefer more lax protocols, and those who are indifferent and will simply follow whatever protocols are set. Regardless of which camp your organization falls into, companies should be aware that their response to these questions will either encourage or deter certain prospects from continuing with the interview process.

I’ve found that most candidates were generally satisfied to hear that the organization is simply following the current federal, state, and municipal guidelines. In addition to the actual protocols, candidates have been very concerned with how those protocols are communicated. They routinely ask:

• Does the leadership communicate changes to protocols in a timely manner?

• Have they listened to employees’ questions and concerns?

• Are protocols safe, fair, and reasonable?

 

In Conclusion

We are in an employee market, and employees want the best of it all. They want work-life balance and more remote-work opportunities, but also want to feel connected with their company’s mission and their colleagues.

This may feel like an impossible balance to achieve, but I believe it can be done. People want to work, they want to feel connected, and they want their work to mean something. That’s the good news. Companies who understand these needs can take action and translate them into powerful employment opportunities that almost certainly will yield happier and more productive workers, better products and services, and stronger businesses.

 

Sarah Rose Stack is the Marketing and Recruiting manager for the Holyoke-based accounting firm Meyers Brothers Kalicka, P.C.

 

Employment

Facing Whistleblower Concerns

By Jeremy Saint Laurent, Esq.

 

Facebook is currently in very murky waters with both the federal government and with its users. Employers should pay attention to the multitude of issues surrounding this matter to better understand potential exposure and develop a response plan.

On Oct. 5, after leaking sensitive Facebook documents to the media and the Securities Exchange Commission, whistleblower Frances Haugen testified before Congress. Haugen’s testimony provided the Senate subcommittee with a glimpse into how Facebook’s policies negatively impact the mental health of its users, particularly children; creates political and social discord; and undercuts democratic ideologies.

Although dealing with public and agency scrutiny is not uncharted territory for Facebook after facing similar allegations during the last two presidential elections, these newly raised allegations of misconduct appear to be especially worrisome because Haugen was a Facebook insider. Haugen was employed in a department within Facebook tasked with investigating how the platform’s algorithm spreads misinformation and how the network was being used by our nation’s foreign rivals. In short, Haugen is believable, credible, and convincing because her allegations amount to Facebook disbanding and ignoring the work of herself and her colleagues in the pursuit of financial growth.

Jeremy Saint Laurent

Jeremy Saint Laurent

“Employees who come forward to the SEC and/or government regarding perceived misconduct are often covered by federal whistleblower protections and other laws, like wrongful termination in violation of public policy.”

In a recent NPR interview, attorney Andrew Bakaj, who represents Haugen, stated that “we have made lawful, protected disclosures to the Securities and Exchange Commission and to Congress. Such disclosures are protected both by law and Facebook’s own internal policies.”

Bakaj correctly states that federal whistleblower protections afford employees and ex-employees a broad range of legal protections for alerting law enforcement, the SEC, and Congress of potential malfeasance. Typically, employers have no legal recourse if that’s the only thing a whistleblower does to report potentially incriminating information. In fact, a Facebook representative told the Senate subcommittee that the company won’t retaliate against the whistleblower for speaking to Congress.

 

Lessons Employers Should Learn from the Facebook Whistleblower Fiasco

Employees who come forward to the SEC and/or government regarding perceived misconduct are often covered by federal whistleblower protections and other laws, like wrongful termination in violation of public policy. In a 2014 decision, the U.S. Supreme Court held that privately owned companies, in addition to publicly traded companies, may be subject to whistleblower liability if they retaliate against an employee or former employee who reports malfeasance to the appropriate agencies.

Massachusetts, like most states, adheres to the at-will employment model. The at-will employment doctrine allows an employer or an employee to terminate the employment relationship at any time, for any reason, with or without cause or notice. However, in addition to federal whistleblower protections, employees are afforded additional protections under state law.

Commonly referred to as ‘wrongful discharge,’ wrongful termination in violation of public policy is a sort of catch-all, judge-made rule that prohibits employers in many states from firing an employee who opposes or refuses to participate in certain unlawful or unethical activities. In Massachusetts, an employee has a viable claim for wrongful discharge if they have a reasonable belief that they are preventing a violation of law. An employee who complains internally that his employer allegedly violated a criminal statute will, more often than not, have a claim for wrongful violation of public policy.

Employers must be conscious of when employees make complaints about possible violations of the law, and be cautious of terminating employees who refuse to conform to a company policy or engage in some action because they believe they are preventing a violation of law.

However, the tide turns when an employee takes things a step further and disseminates confidential information to the media or a competing organization. In the situation of Facebook, before Haugen resigned from Facebook, she copied thousands of pages of confidential documents and shared them with the SEC and Congress, but also with the Wall Street Journal, which in turn, authored a series of articles containing the classified information. Although sharing the information with the Journal does not make Haugen’s actions any less heroic, it may muddy the waters when it comes to what protections she is afforded under whistleblower protection and applicable state law.

Releasing information to media outlets or competing organizations can be in violation of many non-disclosure agreements entered into between the employee and employer during the onboarding process. Because most non-disclosure agreements exclude disclosure only to agencies like the SEC and Congress, employers can explore legal recourse through vehicles like breach-of-contract claims. Typically, non-disclosure agreements require employees to return or destroy confidential documents prior to or immediately after either party terminates the employment relationship. Essentially, non-compete agreements are structured to allow employees to utilize their legal right to report potentially illegal activity or policies within their company while protecting the employers’ legal rights and interest by limiting the types of disclosures allowed.

Should an employer choose to pursue a claim against an employee or former employee for exceeding the bounds of protected activities as outlined by whistleblower regulations and state laws, the employer may seek as damages any severance paid at the time of departure, private pension accrued by the former employee, stock options paid in connection to employment, and general monetary damages.

If you find yourself as an employer in a similar situation, be sure to consult with your labor employment counsel before moving forward with any employment action.

 

Jeremy Saint Laurent, Esq. is a litigation attorney who specializes in labor and employment law matters at the Royal Law Firm LLP, a woman-owned, women-managed corporate law firm that is certified as a women’s business enterprise with the Massachusetts Supplier Diversity Office, the National Assoc. of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council; (413) 586-2288; [email protected]

 

Opinion

Editorial

 

The past 20 months or so have been a living hell for most businesses in this region. Owners, managers, and HR execs (who have been earning their keep, to say the least) have had to cope with everything from the many stages of the pandemic to the worst workforce crisis anyone can ever remember; from supply-chain issues to the ‘Great Resignation’ and retirements.

It’s been a long, hard stretch that has challenged everyone and forced too many small businesses to simply pack it in.

The last thing these businesses needed was another stern challenge, but that’s what many of them got with the vaccination mandates recently announced by the Biden administration. These mandates involve businesses of 100 or more employees (which must soon have all employees vaccinated or tested regularly) and those with contracts with the federal government — all those employees must be vaccinated by Dec. 8, with no testing option (see related story, page 6).

The vaccine mandates are well-intended — they are designed to greatly improve vaccination rates and move the country closer to herd immunity — and in some ways they relieve the employers in these categories from having to implement a vaccine mandate on their own, a controversial decision to say the least. Now, they can simply say, ‘the government is making us do it.’

But as well-intentioned as they are, these mandates are simply not what struggling business owners and managers need right now. They don’t need the additional costs, and there are many of them, from paying for vaccines and tests to paying employees while they’re getting vaccinated or even recovering from side effects. They don’t need the burden of trying to make sure they are in compliance with the new regulations, and they certainly don’t need the additional turmoil when it comes to their workforce.

Businesses across every sector of the economy are not only have trouble filling positions, they’re having trouble simply getting applicants to apply for open positions. It is already a nightmare scenario for these businesses, many of which are trying to fully rebound from the pandemic and get back to something approaching normal — or what existed before March 2020. 

Talented workers are already leaving hospitals and other healthcare providers, police departments, state agencies, and even college football programs because they refuse to be vaccinated. Forcing more businesses, especially small businesses with federal contracts, to also require vaccination or testing as a condition of employment is a step that is only going to wreak more havoc on an economy struggling to pick up steam.

We understand why the Biden administration has taken these steps, and everyone wants to be able to put the pandemic behind us. But mandating vaccinations in this fashion is only going to create more turbulence for employers at a time when they simply don’t need it.

Employment

Breaking Down the Trickier Aspects of Massachusetts Laws

By Ludwell Chase and Amy B. Royal, Esq.

State and federal laws pertaining to minimum wage, tips, overtime, and employing minors are complicated. As a result, these are areas where mistakes are often made.

Ludwell Chase

Ludwell Chase

Amy B. Royal, Esq

Amy B. Royal, Esq

Employers, however, cannot afford these errors because the consequences of not complying with these laws can be very costly. In fact, in Massachusetts, there are mandatory treble (triple) damages for violations of wage-and-hour laws relating to minimum wage, tips, and overtime. This means that, if an employer is found in violation of state law, at a minimum, for every dollar an employer does not pay in accordance with wage-and-hour laws, that employer will have to pay three times that amount.

Under Massachusetts and federal law, employers are allowed to pay employees who receive tips an hourly wage that is lower than the minimum wage. This works by allowing employers to take a ‘tip credit’ for a certain amount in tips that the employee earns. The employee must not make less than minimum wage when their tips and hourly wage are combined. Under the federal law, the Federal Labor Standards Act, all hourly workers must be paid the federal minimum wage of $7.25. Tipped workers may be directly paid $2.13 per hour if their tips and hourly wage combined are at least equal to the minimum wage. In other words, employers can claim a ‘tip credit’ of $5.12 per hour.

The U.S. Department of Labor (DOL) recently released new proposed regulations for tipped workers that reinstate the 80/20 rule. This rule limits the amount of time tipped workers can spend performing activities that are related to tip-generating duties, while their employers can still claim the tip credit. Tipped workers must spend at least 80% of their time performing directly tip-generating activities, such as serving customers, and no more than 20% of their time performing not directly tip-generating activities, such as setting tables. This rule was previously in effect but was replaced by DOL guidance in 2018.

The 2018 guidance provided that employers could claim the tip credit if non-tipped duties were performed at the same time as tipped duties, or if the non-tipped duties were performed for a reasonable time before or after tipped duties. This new proposal returns to the 80/20 rule. In addition, the new proposal specifies that, if an employee performs non-tipped activities for 30 minutes in a row, the employer cannot pay the employee the lower tipped hourly wage for that time.

For employers with tipped workers that are subject to federal wage-and-hour law, this proposal is a good reminder that they need to pay attention to these potential changes and their effects on how they compensate employees.

 

Caution on the Menu

Massachusetts has its own complex laws relating to tips, minimum wage, and overtime. As a result, these are areas where it is easy for employers to make mistakes. Therefore, employers need to pay special attention to ensure they are complying with both state and federal laws. As of Jan. 1, 2021, the minimum wage in Massachusetts is $13.50 per hour. Massachusetts is incrementally increasing the minimum wage in order to reach a $15 minimum wage by 2023. For now, employers may pay workers who make at least $20 a month in tips a tipped hourly wage of $5.55 and take a tip credit of up to $7.95 per hour, for a combined minimum wage of $13.50.

The Massachusetts Tip Law mandates that all tips must be given to employees whose work directly generates tips, and that employers and managers may not keep any portion of their employees’ tips. The law applies to three categories of employees: waitstaff employees, service bartenders, and service employees. Waitstaff employees include waiters, waitresses, busboys, and counter staff who serve beverages or food directly to patrons or clear tables, and do not have any managerial responsibilities. Service bartenders prepare beverages to be served by another employee. Service employees include any other staff providing service directly to customers who customarily receive tips but have no managerial responsibilities. For the purposes of this law, managerial responsibilities are duties such as making or influencing employment decisions, scheduling shifts or work hours of employees, and supervising employees.

Massachusetts law allows for ‘tip-pooling’ arrangements. This means all or a portion of tips earned by waitstaff employees are pooled together and then distributed among those employees. Employers must be cautious when administering a tip pool and ensure that only waitstaff, service bartenders, and service employees are being paid from the pool. This means managers and back-of-house employees like cooks and dishwashers cannot share in tips. Even employees with limited managerial roles who also directly serve patrons are not considered waitstaff employees on days when they perform managerial duties.

When employees do not receive enough in tips to make up the difference between the tipped hourly wage and the minimum wage, employers must pay the difference. Employers are required to calculate tipped employees’ wages at the end of each shift, rather than at the end of the pay period. This requires employers to keep track of how much workers receive in tips for each shift. This may also require employers to pay their tipped employees additional amounts in order to compensate for slow shifts.

Under Massachusetts law, certain businesses, including restaurants, are exempt from paying employees overtime; however, they may not be exempt under federal law. If subject to federal law, employees working in restaurants must be paid one and one-half times the minimum wage (not one and one-half times $5.55 per hour) for all hours worked in excess of 40 hours per week.

Under the Massachusetts Tip Law, if a restaurant includes a service charge, which serves as the functional equivalent of an automatic tip or gratuity, all the proceeds from that service charge must be paid only to waitstaff employees, service employees, or bartenders as a tip. Employers may, however, charge a ‘house fee’ or an ‘administrative fee,’ which they may use or distribute at their discretion, but only if it is clearly stated to customers that the fee is not a tip, gratuity, or service charge for tipped employees. Thus, any fees not intended as gratuities and not paid solely to tipped employees should not be labeled as a service charge.

 

Food for Thought

These complexities are especially important to Massachusetts employers, given that the consequences of failing to comply with wage-and-hour laws can be costly, and the penalty is the same regardless of whether the employer violated the law willfully or by mistake.

Considering the consequences of violations, businesses with tipped employees should regularly consult with their employment counsel to review their practices and policies to ensure compliance with state and federal law.

 

Ludwell Chase and Amy B. Royal work at the Royal Law Firm LLP, a woman-owned, boutique, corporate law firm; (413) 586-2288; [email protected]

Law

Changing the Dynamic

By Jeremy M. Forgue

 

The COVID-19 pandemic has impacted the workplace forever.

According to a report titled “Women in the Workplace – 2020,” women have been hit especially hard. As the report explains, “the COVID-19 crisis has disrupted corporate America in ways we’ve never seen before. No one is experiencing business as usual, but women — especially mothers, senior-level women, and black women — have faced distinct challenges. One in four women are considering downshifting their careers or leaving the workforce due to COVID-19.”

Gender and racial diversity are unquestionably beneficial to the workplace as it can lead to a wider talent pool with people who provide different perspectives and skill sets to utilize. With job rates slowly climbing back towards pre-pandemic levels, businesses need to put a conscious effort on recruiting and retaining female employees, and females of color in particular. Businesses small and large should re-evaluate their current practices and consider several ways to increase or maintain women in the workforce. Here are some suggestions from an employment-law attorney.

 

Flexible Schedules and Core Hours

This can be the easiest strategy, depending on your business. Allowing employees to establish their own schedules or flex the typical 9-5 business model can assist them in better balancing their home and work responsibilities. This option can allow parents to mold their schedule around daycare availability (e.g., 7 a.m. to 3 p.m. or 10 a.m. to 6 p.m.) or split their shift around home responsibilities.

 

Forgiving Gaps in Workers’ Employment History

According to a study by ResumeGo, applicants with work gaps of greater than six months have a 45% lower chance of receiving job interviews. Millions have lost their jobs during the pandemic and remain unemployed. With so many individuals forced to exit the workforce over the past year, accepting gaps in employment is critical to eliminating these hiring barriers.

 

Offering Job Training or Cross-training

The COVID-19 pandemic has made it clear that new job skills are critical in a more digitized working environment. Remote work and Zoom meetings are here to stay. Offering initial job training for skills and requirements that do not require certification or a degree will allow displaced workers a chance to gain useful skills in a new working environment. Similarly, cross-training employees to learn each other’s responsibilities (so long as their positions have enough overlap) can be effective when emergencies arise due to absences from work or other staffing challenges.

 

Create Mentorship Programs or Opportunities

A female-led or minority-led mentorship program can support and promote the advancement of under-represented groups within the workplace. Seasoned women employees can be great support structures for other women trying to begin their careers or advance within the company. Women who are currently excelling at their position or working in an executive-level position can assist other women dealing with similar daily challenges, such as work-life balance.

 

Re-evaluate the Businesses Culture

This one is more abstract and requires internal inquiries, but you should ask if your business provides a culture where women are valued or has a diverse demographic that is often desired by applicants. Ask yourself: is your workforce gender-diverse? What about the leadership positions? If the answer to these questions suggests unequal gender representation in the workplace, ask whether it is because of a culture that does not support women. Perhaps it’s more of a recruiting issue. In any event, you should dig deep for answers and insist on change.

 

 

Childcare Options

Providing on-site childcare is probably an option only for larger businesses. However, here are a few suggestions for all businesses to consider:

• Revisit your employee benefits. Do you already, or can you afford to, provide a childcare subsidy, childcare referral services for nearby locations, or extended paid leave?

• Partner with surrounding businesses. If your business space is too small to provide on-site childcare, reach out to nearby childcare locations and discuss rates and hours that could create a partnership between the businesses or, at the very least, a referral resource.

• Offer extended FFCRA benefits, which are available until Sept. 30, 2021, and can be used by employees to take time off for childcare or other COVID-19-related reasons.

 

Final Thoughts

After making positive strides in the workforce over the past decade, women’s participation in the workforce declined over the last year. To correct this trend, businesses will need to put a conscious effort toward recruiting women into their workforce.

 

Jeremy M. Forgue is an attorney with the law firm Skoler, Abbott & Presser, P.C. in Springfield; (413) 737-4753; [email protected]

Business Talk Podcast Special Coverage

We are excited to announce that BusinessWest, in partnership with Living Local, has launched a new podcast series, BusinessTalk. Each episode will feature in-depth interviews and discussions with local industry leaders, providing thoughtful perspectives on the Western Massachuetts economy and the many business ventures that keep it running during these challenging times.

Episode 61: April 26, 2021

George O’Brien talks with Meredith Wise, president of the Employers Association of the Northeast

BusinessWest Editor George O’Brien talks with Meredith Wise, president of the Employers Association of the Northeast. The two discuss a wide range of topics, from how business owners and managers handle the reopening of their offices and the return of employees — some will want to go to the office, but many won’t — to the growing challenge of simply finding enough good help. Employers across virtually all sectors are struggling with this assignment, and Wise notes things may get even worse before they get any better. It’s must listening, so join us for BusinessTalk, a podcast presented by BusinessWest in partnership with Living Local.

 

Also Available On

Estate Planning

State of Uncertainty

By Cheryl Fitzgerald

 

Over the past year, a number of words and phrases have worked themselves into the lexicon, and our everyday usage: pandemic, quarantine, super spreader, and social distancing all make that list. As does the three-word phrase working from home, which quickly morphed into an acronym — WFH.

Indeed, in March 2020, many businesses large and small required or encouraged their employees to work from home as a way to help stop the spread of the coronavirus. At the time, it clearly was intended to be a short-term measure. Nobody could have predicted that, a year later, some of the same employees continue to work from home, whether mandated by their employees or as a way of life now.

However, this has created unintended consequences for businesses and individuals. Employees working in a state other than the company’s home (i.e., their home and business are in different states) could potentially create a need for the business to file in that other state (known as nexus).

From a business perspective, some guidelines have been issued for businesses to follow. Some states have provided relief and have said the presence of an employee working in a state due to shelter-in-place restrictions will not create nexus for tax purposes in that state.

“Employees working in a state other than the company’s home (i.e., their home and business are in different states) could potentially create a need for the business to file in that other state (known as nexus).”

Some states provided a temporary safe harbor or waiver from state withholdings and tax liability for remote work in a different state during the pandemic. And still others have provided that they will not use someone’s relocation during the pandemic as the basis for exceeding the de minimis activity the business can have in the state without it becoming a taxable issue for them.

Massachusetts in particular has provided corporations tax relief in situations in which employees work remotely from Massachusetts due solely to the COVID-19 pandemic to minimize disruption for corporations doing business in Massachusetts. The Bay State has indicated it will not change the intent of whether or not an employee who has started to ‘work’ in Massachusetts because that is his or her home (i.e., a company situated in another state now has an employee physically working in the state of Massachusetts) is subject to Massachusetts corporate tax. These rules are intended to be in place for Massachusetts until 90 days after the state of emergency is lifted.

For employees that had normally worked in Massachusetts, but are now working at home in a different state, Massachusetts has stated that, since this is for pandemic-related circumstances, they will continue to be treated as performing the service in Massachusetts and subject to Massachusetts individual taxes. Most states (but not all) have adopted similar sourcing rules. Most of these rules were put in place for the year 2020. However, some states are still under the same rules and guidelines, and this will continue during 2021.

The intent for most states is to minimize any tax impact for both employees and employers if an employee’s work location has changed solely due to the COVID-19 pandemic.

However, one state has decided the Massachusetts provisions are unfair to its residents. Prior to the pandemic, New Hampshire’s southern border saw a steady stream of workers heading into Massachusetts on a normal workday. With the pandemic and the stay-at-home orders, many of these employees converted to working at their residence in New Hampshire, which does not have an individual income tax.

Therefore, with Massachusetts indicating that these wages were still going to be considered Massachusetts wages and therefore taxable, the governor of New Hampshire felt this was unfair to their residents and has filed a lawsuit in the U.S. Supreme Court over Massachusetts’ “unconstitutional tax grab.”

New Hampshire Gov. Chris Sununu has argued that “Massachusetts cannot balance its budget on the backs of our citizens and punish our workers for working from home to keep themselves, their families, and those around them safe.” This lawsuit was filed in October 2020. Stay tuned.

Remote working becomes even more complicated when employees telecommute in a different state from which they typically work, and this will begin to impact the employee’s eligibility for local leave (i.e., sick leave).

As the pandemic continues, and with some states having set ending dates for some of these relief provisions, employers may continue to have employees who work remotely, either by choice or convenience. The taxability of which state the wages should be taxed in will need to be revisited by employers and employees alike.

 

Cheryl Fitzgerald, CPA is a senior manager at Holyoke-based accounting firm Meyers Brothers Kalicka, P.C.; (413) 536-8510.

Law

A Question of Mandates

By Timothy F. Murphy

 

Employers have a key role to play in ensuring the successful rollout of COVID-19 vaccines and that people are safe at work. Many employers may wish to adopt vaccine mandates, especially if their employees work in close contact with others. But before doing so, employers need to consider a number of things.

 

Can Employers Require Vaccinations?

Yes. Non-union employers can unilaterally require employee vaccinations because employment relationships are ‘at will,’ and they have a legal duty to provide a safe and healthy workplace. Many employers already require workers to get inoculated against certain infectious diseases.

 

Can Employees Object to Vaccine Mandates?

Yes. Anti-discrimination laws provide disabled and religious employees with legal protections from vaccine mandates. Employers that require employees to receive the COVID-19 vaccine must meet certain requirements under those laws.

Timothy F. Murphy

Timothy F. Murphy

“Non-union employers can unilaterally require employee vaccinations because employment relationships are ‘at will,’ and they have a legal duty to provide a safe and healthy workplace.”

A worker with a covered disability may seek an exemption from a vaccine mandate. For instance, medical advice to avoid a vaccine due to an employee’s underlying health condition may legally justify a vaccine refusal. In such situations, the employer must explore whether an exemption is a reasonable accommodation given the disability and job duties — so long as it isn’t an undue burden for the employer. Accommodations — like telework or working in isolation from co-workers — that would allow the unvaccinated employee to perform essential job functions would likely not be an undue burden.

According to recent guidance from the Equal Employment Opportunity Commission, sincerely held religious beliefs may also justify a vaccine refusal. An employer must provide a reasonable accommodation “for the religious belief, practice, or observance” that prevents the worker from receiving the vaccine, unless that accommodation poses more than a “de minimis” cost or burden. Employers may seek verification of such beliefs only if they have an objective reason for doing so.

 

Government Vaccine Mandates Appear Unlikely for Now

A general state vaccine mandate does not appear to be in the cards anytime soon. On the federal level, President-elect Biden has signaled that he is not considering a vaccine mandate at this time. It also appears unlikely that the federal agency charged with workplace safety, the Occupational Safety and Health Administration (OSHA), would require employers to mandate a COVID-19 vaccine. In the past, OSHA has permitted employers to require employees to receive the flu vaccine.

 

Public-health Experts Warn Against Mandates for Now

Even if employers can legally mandate COVID-19 vaccinations, U.S. Surgeon General Jerome Adams recommends against it. “Right now, we are not recommending that anyone mandate a vaccine,” Adams said in a recent interview with Yahoo Finance, noting that Pfizer’s vaccine hasn’t been fully approved yet. According to Saad Omer, a vaccinologist and infectious-disease epidemiologist at Yale University, “mandates shouldn’t be the frontline policy option.”

 

Avoid the Backlash

A vaccine mandate could trigger employee-morale issues. Vaccine hesitancy is a concern across the country. One study revealed that more than one-third of Americans would refuse a COVID-19 vaccine if offered one. However, other data suggests that Americans’ willingness to take a COVID-19 vaccine has risen as data on the vaccines’ efficacy have emerged. Many people have said they are more comfortable waiting a few months to get the vaccine. Employers need to be sensitive to employee concerns if vaccination is mandated as soon as it becomes publicly available.

 

Reduce Potential Legal Liability

Employees injured by a mandated vaccine may bring legal claims for workers’ compensation, negligence, and OSHA violations. It is difficult to predict the success of such claims. The ability to argue that government recommendations were followed would go far in defending against them. Limiting a vaccine mandate to high-risk positions or workplaces may also reduce potential legal liability and employee backlash.

 

Wait and See Is the Way to Go

Most Massachusetts non-healthcare employers and their employees are not going to have access to any vaccines before the spring of 2021. So most employers can wait to decide to mandate vaccines simply because there won’t be vaccines immediately available.

In the meantime, employers should be prepared to provide reliable information; reinforce other steps to protect employees and the public, like continued screening, fitness-for-duty programs, and contract tracing; implement employee incentives for voluntary vaccinations; and consider mandatory rapid testing, as those products come to market, as an alternative to mandatory vaccination.

 

Timothy Murphy is a partner at Skoler, Abbott & Presser, P.C., focusing his practice on labor relations, union avoidance, collective bargaining and arbitration, employment litigation, and employment counseling.

Coronavirus Features

Looking Up

Could better times be around the corner? A growing number of executives across the U.S. think so.

In the just-released 2021 National Business Trends Survey from the Employer Associations of America (EAA), 44% of company executives see an improving economic outlook in 2021. This annual survey shares information on what executives nationally are doing to address the changing business climate. Survey responses also reflect the impact COVID-19 has had on this year’s business trends.

When executives were asked if the overall U.S. economy in the next 12 months will “improve, stay the same, or decline,” the largest segment of respondents (44%) think it will improve, as opposed to last year, with only 12% expecting the economy to improve — and that was before the pandemic had come into view. This year, 33% think it will stay the same, as opposed to 52% last year. Only 24% think it will decline, compared to 36% a year ago.

“COVID certainly has had a significant impact, and perhaps many are feeling that the economy can only get better moving forward into 2021,” said Thoran Towler, who chairs the EAA board of directors. “In fact, fueling that optimism, 57% of executives project slight to significant increases in sales and revenue. American businesses are showing their resilience and readiness to tackle today’s challenges and come out stronger than ever before.”

An additional 11 questions were added to this year’s survey regarding COVID-19’s impact on business, addressing employee safety, stay-at-home measures and social distancing, remote work, online interviews and training, hazard pay and bonuses, and candidates who are unwilling to work in the office or out in the field.

When asked how concerned respondents are regarding COVID-19 and its impact on business continuity (specifically the supply chain, financial implications, and temporary shutdowns), 52% indicated they are “extremely to moderately concerned.” In the Northeast, 43% of the region’s executives expect the pandemic to negatively impact business and capital spending either moderately or significantly.

However, companies are already starting to pivot from a focus on pandemic measures to investing in the future. As the charts the two charts demonstrate, respondents expect to put less effort into COVID-specific activities in 2021 than they did in 2020, and more effort into investing in technology, equipment, and other efforts to grow their business.

“The pandemic has forced companies to be agile and innovative during these uncertain times,” said Mark Adams, director of Compliance at the Employers Assoc. of the NorthEast. “While expenditures are being scrutinized now more than ever before, the need to invest strategically nonetheless remains important as businesses seek to position themselves to rebound in 2021 and make up for lost ground.”

Similar to last year’s survey responses, the top three serious challenges for business executives include talent acquisition, talent retention, and the ability to pay competitive wages. The ability to pay for benefit costs and the cost of regulatory compliance rounded out the top five.

Also noteworthy for 2021, 64% of the survey respondents are planning to award wage and salary increases, while 29% plan to award variable pay bonuses next year.

The EAA is a national nonprofit association that provides this annual survey to business executives. The 2021 survey included 1,484 participating organizations throughout the U.S., an increase of nearly 400 over last year’s survey.

COVID-19

PPP Loan Forgiveness 101

By Jeff Laboe, CPA

Please realize that the information available today is different than it was a four months ago, and will most likely look different two months from now, so keep that in mind while reading this article.

With all the uncertainty these days, the last thing taxpayers should be worrying about is how to complete the application for your Paycheck Protection Program loan forgiveness. The intent of this article is to give taxpayers an idea of the application process and forms that need to be submitted for forgiveness of the PPP loan the business received.

Jeff Laboe

Jeff Laboe

A business of any type (LLC, S-corp, sole proprietor, etc.) that received funds via a PPP loan in 2020 may apply for the forgiveness of repayment of this loan. Taxpayers who received a loan, maintained proper records, followed the Small Business Administration rules and guidelines with respect as to how the loan proceeds were spent, and performed all necessary calculations should qualify for forgiveness on the repayment of the loan or the portion of the loan that qualifies.

There are three different application forms that may have to be completed based upon your individual PPP loan program. You have 10 months from the completion of your loan period to file one of these forgiveness applications. The three forms to be used are Form 3508S, 3508EZ, and Form 3508, or the equivalent forms offered by your bank.

The first is Form 3508S, which can be used only by those who received $50,000 or less in PPP loan proceeds. The application asks taxpayers to provide the forgiveness amount requested and to certify with signatures that all the conditions were met. There are no calculations required on the application and no reductions in forgiveness due to reduced head count or salaries or wages. This form is the most straightforward.

Form 3508EZ may be used by self-employed individuals, independent contractors, or sole proprietors that have no employees and/or wages at the time of the loan-application process.

A business also qualifies to use this form if it received more than $50,000 but less than $150,000 in PPP funds, and met one of two additional scenarios:

• Salary and wages were not reduced by more than 25% during the loan period, and the employee head count was restored by the end of the chosen loan period — essentially, the net head count wasn’t affected; or

• Salary and wages were not reduced by more than 25% during the loan period and you were unable to operate the same level of business due to compliance with requirements to any work or customer safety requirements related to COVID-19. Similar to the 3508S application, there are no calculations required. Taxpayers instead need to confirm and provide support that the loan proceeds were used for eligible costs.

The last form is the standard Form 3508. This application is for all taxpayers who do not meet the thresholds to file one of the previously discussed forms. This standard application is much more detailed and complex, and may require some additional time and supporting documents. Taxpayers might want to seek assistance from their professional advisors.

“With all the uncertainty these days, the last thing taxpayers should be worrying about is how to complete the application for your Paycheck Protection Program loan forgiveness.”

Additionally, if your business also obtained an EIDL advance, that amount needs to be subtracted from the amount of loan proceeds that would otherwise be eligible for forgiveness. This applies for all three loan-forgiveness forms. Legislation has also been introduced (U.S. Senate Bill 4321) that details potential automatic forgiveness for any PPP loan under $150,000 if the debtee “signs and submits to the lender an attestation that the eligible recipient made a good-faith effort to comply with the requirements under section 7(a)(36) of the Small Business Act.” The status of the bill is uncertain at this time.

Once you have submitted your application, the loan provider has 60 days from the date the application was received to issue a decision to the SBA. The SBA then has 90 days to review the application and remit the forgiveness amount to the lender.

When it comes to PPP loan-forgiveness applications, remember the three different levels: less than $50,000, between $50,000 and $150,000, and above $150,000. As of now, taxpayers have to apply for forgiveness within 10 months of the end of the loan period. Be sure you complied with all the rules and guidelines on what the qualified expenses are and kept accurate and complete records. And don’t be overwhelmed by the applications. If you need assistance, there are resources for you.

 

Jeff Laboe is a senior tax associate with MP CPAs; www.thempgroupcpa.com

Law

Planning for PFML

By John Gannon, Esq. and Meaghan Murphy, Esq.

 

John S. Gannon

John S. Gannon

Meaghan Murphy

Meaghan Murphy

COVID-19 has created an extraordinary level of uncertainty and anxiety for businesses across the world. Since March, countless employers have been forced to dedicate just about all their energy and resources to sustaining a viable business in the face of mandatory closures, layoffs and furloughs, and ever-changing reopening regulations and guidelines.

In the midst of this chaos, it is easy to forget that the most generous paid-leave law in the country is coming to Massachusetts on Jan. 1, 2021. The Massachusetts Paid Family and Medical Leave (PFML) law provides all employees up to a total of 26 weeks of paid, job-protected family and/or medical leave to each year (up to 12 weeks of paid family leave and up to 20 weeks of paid medical leave). The PFML obligations extend to all employers in Massachusetts, regardless of size. As we approach the Jan. 1 PFML kickoff date, here are five things all businesses should be thinking about as they prepare to implement this complex new law.

 

Private-plan Exemption

The Massachusetts PFML program is a state-offered paid-leave benefit available to anyone who works in the Commonwealth. PFML is funded through a Massachusetts payroll tax paid by employees and employers with 25 or more employees. Interestingly, there is an avenue for employers to receive an exemption from collecting and paying PFML contributions. If a business offers company-provided paid-leave benefits that are greater than or equal to the benefits provided by the PFML law — typically through a private insurance carrier — it may be granted an exemption from the state PFML program.

Employers seeking an exemption need to submit an application with the state, which usually can be facilitated by the private carrier that is administrating the paid family and medical leave benefit.

Importantly, businesses that opt out of the state PFML program still need to abide by the job-protection and anti-retaliation provisions in the PFML law. Generally, employees who take family or medical leave under the law must be restored to their previous position or to an equivalent position when they return from leave, with the same status, pay, employment benefits, and seniority as of the date of leave. In addition, it is unlawful for any employer to discriminate or retaliate against an employee for exercising PFML rights (more on this below).

 

Employer-notice Obligations

Businesses are required to notify their workforce about the Massachusetts PFML program, including the new benefits and protections that apply to them. This notification includes displaying the PFML workplace poster in a highly visible location; providing written notice of contributions, benefits, and workforce protections to your eligible employees; and collecting acknowledgments of receipt of such written notice signed by all eligible employees.

Both the workplace poster and model employer-notice forms can be found on the state’s PFML website: www.mass.gov/info-details/informing-your-workforce-about-paid-family-and-medical-leave. Failure to provide the notice can lead to in a fine of $50 per employee for first violations, increasing to $300 per worker for subsequent violations.

Handbook Policies

In addition to meeting their PFML poster and written-notice requirements, employers should review and update other workplace policies that will be impacted by the new law. For example, other leave policies (e.g., sick, PTO) should be updated to note that PFML leave runs concurrently with those other leaves. Employers may also want to update attendance and related discipline policies, including procedures for requesting time off and/or call-out procedures.

It goes without saying — but we’ll say it anyway — that employers should establish and enforce their PFML policy and all other workplace policies consistently.

 

Performance Management

Employers should examine and recommit to their performance-management, discipline, and documentation policies and procedures. This is because employees who are let go or disciplined after taking PFML may have a lawsuit for retaliation if a business cannot prove the employment decision was related to poor performance or misbehavior. In fact, any adverse action taken against an employee during or within six months of PFML leave is presumed to be unlawful interference or retaliation.

As a result, employers’ expectations for performance and workplace conduct, and the consequences for failing to meet those expectations, should be clearly defined, and employers should document all such failures in a timely manner. This is critical to defending against a potential claim by an employee that his termination constitutes unlawful retaliation for his PFML leave use.

 

Training

Employers should make sure all managers receive training on performance-management and discipline policies and procedures, as well as how to properly document such issues. Managers should be disciplining employees consistently and holding them accountable for performance and discipline issues. If an employee who has used PFML leave is terminated for performance-related or disciplinary reasons, employers want to be in a position to support their lawful reasons for termination with proper documentation.

A manager turning a blind eye to performance or discipline issues, or failing to properly document them, can cost employers significantly down the road in the face of a lawsuit filed by a disgruntled employee. Well-trained managers are worth their weight in gold.

 

Bottom Line

Jan. 1 is fast approaching. Massachusetts employers need to be prepared to meet their PFML compliance obligations, which not only involves understanding how PFML benefits work, but also planning for increased frequency of employee time-off requests and longer leaves of absence. Employers with questions about how the new PFML law will impact their business should seek advice from legal counsel. u

 

John Gannon is a partner with Springfield-based Skoler, Abbott & Presser, specializing in employment law and regularly counseling employers on compliance with state and federal laws, including the Americans with Disabilities Act, the Fair Labor Standards Act, and the Occupational Health and Safety Act. Meaghan Murphy is an associate with the firm and specializes in labor and employment law; (413) 737-4753.

Law Special Coverage

COVID Lawsuits

By John Gannon, Esq.

Businesses across the globe are in the midst of planning, preparing, and executing their reopening strategies. While this news is encouraging, employers face novel and complicated legal questions about their potential liability to employees who either get sick at work or cannot return due to medical or childcare-related reasons.

Searching for answers, businesses leaders are confronted with an array of local, state, federal, and industry-specific protocols for operating safely. Charting a course in the face of this uncertainty is no small task. Unfortunately, one thing remains clear: there will be a wave of lawsuits triggered by the difficult business decisions made during this challenging time.

The COVID-19 crisis will send shockwaves through the courts and fair-employment agencies (such as the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination) for years to come. Senate Majority Leader Mitch McConnell remarked that an “epidemic” of these lawsuits will lead to “a trial-lawyer bonanza.” While likely overstated, the concern for employers should be real. Numerous COVID-19-related lawsuits have been filed, with many more on the way. Here are a sampling of those legal theories, with prevention tips and tactics at the end.

Negligence and/or Wrongful Death

One of the scariest claims for businesses will be negligence and wrongful-death lawsuits. In short, these actions may be lodged by employees (and even customers) who are harmed by COVID-19 because the employer failed to keep the work environment safe.

How might this look? Imagine that employees in a manufacturing plant return to work as the business reopens (or perhaps they have been working all along if the workers are deemed ‘essential’). Joe, who works on the factory floor in close proximity with others, tests positive for COVID-19. Mike, who works near Joe, also tests positive. Mike in turn infects members of his household, including an aging, immune-compromised parent. Can any of them sue the business?

John S. Gannon

John S. Gannon

“Our workers’ compensation system typically prevents employees from suing their employers for injuries that result from working. Instead of suing, employees with occupational injuries get paid through workers’ comp. But is a COVID-19 infection ‘occupational?’”

Our workers’ compensation system typically prevents employees from suing their employers for injuries that result from working. Instead of suing, employees with occupational injuries get paid through workers’ comp. But is a COVID-19 infection ‘occupational?’ Proving the root cause of a COVID infection is very difficult, as the virus spreads easily and can be contracted nearly anywhere.

In the above example, would Joe have a workers’ comp claim? Probably not, unless he can show others he was working in close proximity with someone who had the virus before him. What about Mike? He has a better claim, but still no sure thing. And certainly the family member would not be filing a comp claim. Instead, a negligence or wrongful-death suit might follow.

Recently, the relative of a retail-store employee in Illinois who died from COVID-19 sued the retailer for negligence and wrongful death. The lawsuit claims that the employee contracted COVID-19 in the store, and the business did not do enough to protect employees from the virus. All businesses that are open or reopening should have this case on their radar.

FFCRA Violations

By now, everyone should know that the Families First Coronavirus Response Act (FFCRA) allows employees to take paid leave for a number of COVID-19-related reasons, including the need to care for children who are unable to go to school or daycare. Employees who are denied FFCRA rights or retaliated against for taking FFCRA leave can sue you in court. Successful employees may be entitled to reinstatement, lost wages, attorney’s fees, and double damages.

The first FFCRA-related lawsuit was filed last month. In the case, a female employee (and single mom) claimed she was fired because she requested FFCRA leave due to her son’s school closing. The employee allegedly discussed her need for leave to care for her son, and was told that the FFCRA was not meant to be “a hammer to force management into making decisions which may not be in the interest of the company or yourself.” She was fired a few days later and then filed what might be the first FFCRA lawsuit. Many more are certain to follow.

Discriminatory Layoffs

At the time of this article, the unemployment rate in the U.S. stands at almost 15%, and more than 30 million Americans have filed for unemployment since mid-March. Each layoff decision comes with the risk that someone will claim the reason they were selected was discriminatory.

Suppose Jane, who is 60, gets laid off, while many younger workers were retained for employment. Jane may claim that the reason was at least partially motivated by her age. If she was right, it would be would be textbook age discrimination.

Whistleblower/Retaliation Lawsuits

Employees who raise complaints or concerns about workplace safety are protected against retaliation by the Occupational Safety and Health Act. Similarly, Massachusetts has a law that protects healthcare workers who complain about practices that pose a risk to public health. We expect an increase in these lawsuits during this pandemic.

Prevention Strategies

These novel COVID-19-related lawsuits generally fall into one of two buckets: claims related to worker health and safety, and discriminatory or retaliatory adverse employment actions.

To protect against the first batch, businesses need to rigorously follow federal, state, and local guidance on maintaining a safe workplace. Agencies like the Centers for Disease Control and Prevention, the Occupational Safety and Health Administration, and the Equal Employment Opportunity Commission have issued guidance on topics like maintaining safe business operations, temperature checks for employees, and personal protective equipment. Check with your risk-management advisors to see if they have developed checklists or other tools you can use to aid in your business reopening.

Avoiding the second type of lawsuit (discrimination, retaliation, etc.) involves the same tried and true principles that were critical before COVID-19. Make sure you have reasonable, business-based justifications for your decisions that are not motivated by characteristics like race, age, gender, or use of FFCRA leave. These business-based reasons should be well-documented and understandable to laypeople, who may be reviewing your justification in a jury room. Finally, when in doubt, consult with your labor and employment-law specialists.

John Gannon is a partner with Springfield-based Skoler, Abbott & Presser. He specializes in employment law and regularly counsels employers on compliance with state and federal laws, including the Americans with Disabilities Act, the Fair Labor Standards Act, and the Occupational Health and Safety Act. He is a frequent speaker on employment-related legal topics for a wide variety of associations and organizations; [email protected]

Law Special Coverage

Calling Back Workers

By Mary Jo Kennedy, Esq. and Sarah Willey, Esq.

Mary Jo Kennedy

Mary Jo Kennedy

Sarah Willey

Sarah Willey

As businesses prepare for reopening, many employers are summoning laid-off and furloughed employees and notifying employees who have been working remotely to return to the physical workplace.

Some employers are anticipating that their reopening may be a gradual process. Employers may do a ‘soft reopening’ in order to test workplace-safety measures such as social distancing. Some businesses may find, as a result of new safety procedures, that their workplace no longer requires certain positions. As a result, employers may not need the same number of employees or positions they had back in early March.

However, recalling only a portion of a workforce does have its own risks. Employers should carefully consider who and how many workers to recall and when to have them return.

Once notified, workers’ responses to the callback may vary. Some employees will welcome the return to work as a sign that things are returning to ‘normal,’ while others may have mixed feelings as they may want or need to stay home until the pandemic is over. Employers must consider how to best respond to workers’ requests.

How do you select which employees to call back when calling back fewer than all?

First, identify the types of positions and the number of employees needed for each position to be recalled. There may be certain skill sets or knowledge base needed in order to ramp up business after the shutdown.

“If they have medical concerns regarding returning to work, they should discuss those concerns with their supervisor or human-resources team and encourage them to stay home or arrange an alternate work assignment.”

Second, businesses should consider any policy or past practice regarding recalling employees as there may be a legitimate business reason for not following them. Employers should evaluate their business rationale for the selection process and document the criteria used for selecting one employee over another. Selection criteria may appear neutral on the surface, but the effect of its application may inadvertently result in the elimination of all or a majority of a group of employees in a class protected under discrimination laws. As a result, selection criteria may need to be reconsidered in order to avoid possible discrimination claims.

Can you decide not to recall employees because of a concern regarding their health?

Employers may have a genuine concern that a group of employees may be susceptible to greater harm if infected with COVID-19. For example, an employer may be concerned about possible exposure to COVID-19 of an older employee, employees with known medical conditions, or a pregnant employee. Any selection decision based on a person’s age, perceived disability, or pregnancy will expose the employer to discrimination claims.

Employers should not take a paternalistic view of deciding what is best for its employees. Rather, an employer should let employees know that, if they have medical concerns regarding returning to work, they should discuss those concerns with their supervisor or human-resources team and encourage them to stay home or arrange an alternate work assignment.

What if you laid off some and furloughed other employees?

Employers should consider calling back furloughed employees before rehiring laid-off employees. Employers may have given furloughed employees written assurances that they would be called back and may have retained them on health insurance, indicators that the employer intended to have the furloughed employees return to work.

How do you communicate the call back?

Employers should communicate the offer to return to work in writing. The communication should detail the start date, full-time or part-time status, position, hours, work schedules, wages, location, and conditions of the job.

What if a business calls back laid-off or furloughed employees and the response is that an employee has found other employment?

If an employer is told that a laid-off or furloughed employee is not returning to work because the individual has found employment elsewhere, the employer should document the reason for not returning and then move to the next employee on the recall list. If your business participated in the Paycheck Protection Program, documenting the reason for the refusal is critical in order to meet the loan-forgiveness requirements.

Also, if accrued but unused vacation time has not previously been paid, it should be paid out to the employee immediately, and if the employee was on the employer’s health insurance, a COBRA notice should be sent to the employee.

What if a business calls back a laid-off or furloughed employee who is unable to return to work because of a lack of childcare?

With schools and daycare facilities currently closed, employees with school-aged children may not have childcare options. Under the CARES Act, individuals who are unable to work (including telework) and are the primary caregiver for a child whose school or childcare facility is closed or whose childcare provider is unavailable due to COVID-19 can receive Pandemic Unemployment Assistance.

In addition, the employee may be eligible for paid extended family and medical leave under the Families First Coronavirus Response Act (FFCRA), under which eligible employees who are unable to work at their normal worksite or by means of telework are entitled to 12 weeks of paid extended family and medical leave (at two-thirds of their regular rate of pay) to care for a child whose school or place of care is closed (or childcare provider is unavailable) due to COVID-19-related reasons.

The FFCRA provides eligibility for paid extended family and medical leave to an employee who was laid off or otherwise terminated by the employer on or after March 1, 2020 and rehired or otherwise re-employed by the employer on or before Dec. 31, 2020, provided that the employee had been on the employer’s payroll for 30 or more of the 60 calendar days prior to the date the employee was laid off or otherwise terminated.

What if an employee has been working remotely during the shutdown and is unable to physically return to the worksite because of a lack of childcare?

While many remote employees have been able to work effectively at home during the forced shutdown, other remote employees may have struggled due their type of work not being conducive to telework. An employer may have valid concerns about an employee’s telework performance, such as the quality and quantity of the work, and should address with remote employees any performance issues.

An employer should discuss with an employee the possibility of flexible or reduced hours in a physical workplace or a modified remote-work schedule. If these options are not viable, an employee unable to return to their normal worksite may be eligible for unemployment.

What if an employee who has a medical condition increasing their risk of harm if exposed to COVID-19 wants to continue working remotely?

Addressing this issue requires consideration of federal and state reasonable-accommodation laws. If the medical diagnosis constitutes a disability under state or federal disability laws, the employee may be entitled to a reasonable accommodation. Given these unprecedented times, an employer may treat a medical condition that puts an individual at an increased risk of harm if exposed to COVID-19 as a disability. The employer should also explore with the employee other possible accommodations in addition to working remotely.

What if an employee can work but has a medical condition, adding increased risk of harm if exposed to COVID-19, but the employee’s job duties cannot be done remotely?

Dealing with employees whose work cannot be done remotely but are at an increased risk of harm if exposed to COVID-19 has unique concerns, and each situation should be considered on a case-by-case basis. If the employee was advised by a healthcare provider to self-quarantine due to concerns related to COVID-19 and the employer is subject to the FFCRA, the employee may be eligible for 80 hours of paid sick leave under FFCRA.

However, in this scenario, the FFCRA requires that the employee be “particularly vulnerable to COVID-19” and that following the advice of a healthcare provider to self-quarantine prevents the employee from being able to work, either at the employee’s workplace or by telework. Employers should obtain appropriate medical documentation substantiating the reasons for the self-quarantine.

In addition, if the medical diagnosis constitutes a serious medical condition or a disability, the employee may be entitled to either an unpaid leave of absence under the Family Medical Leave Act (if the employer has 50 or more employees and as such is a FMLA-covered employer) or a leave of absence as a reasonable accommodation for the disability.

What if an employee wants to continue to work remotely because the employee has an immediate family member who has a medical condition that puts that family member at increased risk of harm if exposed to COVID-19?

An eligible employee of a FMLA-covered employer can take a leave of absence to care for a family member with a serious medical condition. But if the family member does not need the employee’s care, the requirements for FMLA leave would not be met.

Under the American with Disabilities Act, employers are required to provide qualified disabled employees with a reasonable accommodation. When leave and accommodation laws do not apply, employees may ask employers to apply common decency to the situation and let them return to the physical workplace at a later time.

These are challenging issues for employers, who must balance the need to protect employees from COVID-19 with the need to maintain a workforce to keep the business open.

Employers should be cautious when navigating the various leave and disability laws in order to avoid lawsuits. Before denying employees’ leaves or other reasonable-accommodation requests, employers should engage with employees in order to assess the validity and reasonableness of the requests and should document the steps taken.

Mary Jo Kennedy is a partner and chair of the employment group at Bulkley Richardson, and Sarah Willey is counsel and member of the employment group at Bulkley Richardson.

Coronavirus

Coronavirus in the Workplace

By John Gannon and Andrew Adams

John S. Gannon

John S. Gannon

Andrew Adams

Andrew Adams

For those of you not living under a rock or in Antarctica, COVID-19 (the novel coronavirus), has become a topic of everyday discourse. As the number of reported COVID-19 cases rise, so do the concerns for businesses and their employees.

Employers are wondering what, if anything, they can do to help their workplace remain safe. At the same time, employees may fear coming into the office and working alongside sick colleagues or customers. Can these folks stay home? Can employers force them to stay home? Do businesses have to pay employees who stay home? Should they pay them? These are some of the questions we tried to answer during this rapidly evolving situation.

How Does Coronavirus Relate to Workplace Laws?

The Equal Employment Opportunity Commission (EEOC) is tasked with enforcing workplace anti-discrimination laws such as the Americans with Disabilities Act (ADA). Several years ago, the EEOC put out guidance explaining that the ADA is relevant for employers to consider during pandemic preparation because it regulates the types of questions and actions employers can take when dealing with employees suffering from medical impairments.

“Employers should maintain flexible policies that permit employees to stay home to care for a sick family member. Employers should be aware that more employees may need to stay at home to care for sick children or other sick family members than usual.”

Recently, the EEOC referenced this guidance when discussing coronavirus, and also stated that the guidance does not interfere with or prevent employers from following the guidelines and suggestions made the Centers for Disease Control and Prevention (CDC) about steps employers should take regarding coronavirus.

CDC’s Recommended Strategies for Employers

The CDC’s “Coronavirus Disease 2019 (COVID-19): Interim Guidance for Businesses and Employers” lists several suggestions for employers to implement in their practices. We summarize the most relevant recommendations below:

• Actively encourage sick employees to stay home.

• Ensure sick-leave policies are flexible and consistent with public health guidance. Employers should maintain flexible policies that permit employees to stay home to care for a sick family member. Employers should be aware that more employees may need to stay at home to care for sick children or other sick family members than usual.

• Separate sick employees. Employees who appear to have acute respiratory illness symptoms (i.e. cough, shortness of breath) upon arrival to work or become sick during the day should be separated from other employees and be sent home immediately.

• Emphasize staying home when sick, respiratory etiquette, and hand hygiene by all employees. The CDC recommends that employers provide soap and water and alcohol-based hand rubs in the workplace, and instruct employees to clean their hands often with an alcohol-based hand sanitizer that contains at least 60% to 95% alcohol, or wash their hands with soap and water for at least 20 seconds.

• Advise employees to take certain steps before traveling, including checking the CDC’s Traveler’s Health Notices for the latest guidance and recommendations for each country to which employees will travel.

• Employees who are well but have a sick family member at home with COVID-19 should notify their supervisor and refer to CDC guidance for how to conduct a risk assessment of their potential exposure.

• If an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the ADA.

Some Questions and Answers

Here are some of the most common questions we have been getting from businesses in connection with the coronavirus outbreak:

Can employers ask for more information from employees who call out sick? Yes, employers can ask employees if they are experiencing flu-like symptoms, as long as they treat all information about sickness as confidential.

Can employers request that employees stay home if they are experiencing flu-like symptoms? Yes, but employers should consider whether they will pay employees who are asked to stay home due to possible coronavirus exposure. Also, absenteeism policies should be relaxed if you require an employee to remain at home, or if the employee is required to stay at home due to a mandatory requirement. Employers should be mindful of employment laws that speak to sick-time usage, including the Massachusetts Earned Sick Time Law.

When an employee returns from travel during a pandemic, must an employer wait until the employee develops influenza symptoms to ask questions about exposure to pandemic influenza during the trip? No. If the CDC or state or local public health officials recommend that people who visit specified locations remain at home for several days until it is clear they do not have pandemic influenza symptoms, an employer may ask whether employees are returning from these locations, even if the travel was personal.

May an employer encourage employees to telework (i.e., work from an alternative location such as home) as an infection-control strategy during a pandemic? Yes. The EEOC states that telework is an effective infection-control strategy. In addition, employees with disabilities that put them at high risk for complications of coronavirus may request telework as a reasonable accommodation to reduce their chances of infection.

Do we have to pay employees who stay home sick? As a general rule, non-exempt/hourly employees are only required to be paid for any time they perform work. If a non-exempt employee is required by you or a public health authority to stay home, they do not need to be compensated for that time, unless they have company-provided sick-time benefits. However, businesses need to consider fairness in this situation.

Employers should encourage the use of unused vacation or personal time if the employee is out of sick time, and also be wary of employee morale problems that could arise if employees are required to remain out of the office and are forced to go without pay. This is especially true given the comments that members of Congress on both sides of the aisle have made regarding the need for American businesses to step up and pay workers for time out that may be occasioned in a pandemic scenario.

In short, employers without telecommuting options should consider paying employees for time spent under self-quarantine, even if the employee is out of sick-time benefits. Employers should also remember that their exempt employees should be paid full salaries if they perform any work during a work week, even if it is done at home.

Employers should be carefully monitoring the CDC website for updates and information. In addition, now is a good time to review your company sick-leave policy and consider whether you will allow for more time off during pandemics. We also recommend that employers consult with labor and employment counsel on this complex situation if they are planning to take action against sick employees or instituting any new policies.

John Gannon is a partner with Springfield-based Skoler, Abbott & Presser. He specializes in employment law and regularly counsels employers on compliance with state and federal laws, including the Americans with Disabilities Act, the Fair Labor Standards Act, and the Occupational Health and Safety Act. He is a frequent speaker on employment-related legal topics for a wide variety of associations and organizations. Andrew Adams is an associate with the firm and specializes in labor and employment law; (413) 737-4753.

Law

Breaking Up Is Hard to Do

By Amelia J. Holstrom

On Nov. 3, 2019, news broke that the McDonald’s board of directors voted to terminate CEO Steve Easterbrook for having a consensual relationship with an employee.

Early reports indicate that, after a three-week internal investigation, McDonald’s board found the relationship to be inappropriate and in violation of its policies, including its standards of business conduct, which prohibits employees with “a direct or indirect reporting relationship” from “dating or having a sexual relationship.” McDonald’s makes clear in its policy that “it is not appropriate to show favoritism or make business decisions based on emotions or friendships rather than on the best interests of the company.”

Amelia J. Holstrom, Esq.

Amelia J. Holstrom, Esq.

McDonald’s is not the first large corporation to find itself in this type of predicament. Companies like Boeing, in 2005, and Best Buy, in 2012, have parted ways with chief executives based on alleged relationships with employees. The decision to remove an employee at any level involves consideration, but to remove an employee at the top of the ladder should be no different.

You may be asking, can companies do that? Can they fire someone for a consensual relationship? Yes, they can — and so can you.

Love Hurts

It isn’t any secret that people spend most of their waking hours at work. Not surprisingly, office romances sometimes bloom. What better place to meet your soulmate, right?

From the employer’s point of view, dating in the workplace can spell trouble. Office romances create many problems. Because employers cannot prevent their employees from developing emotions, it is important to address workplace romances well in advance of any potential problems.

Workplace dating is a recipe for disaster in more ways than one. In addition to decreasing morale and productivity, when true love goes sour, employees often cannot work with each other anymore, or worse, workplace romances can ultimately lead to sexual harassment and/or discrimination and retaliation claims.

“The decision to remove an employee at any level involves consideration, but to remove an employee at the top of the ladder should be no different.”

Assume, for example, that a superior and subordinate have been dating for some time. Their romance fizzles, and things end. What if the subordinate now claims to have felt pressured into the relationship? A supervisor’s relationship with a subordinate is most damaging to the company because of the legal consequences.

In Massachusetts, when a supervisor engages in harassment of a subordinate, even if there is no direct reporting relationship, a business is automatically liable for that harassment.

I Would Do Anything for Love, but I Won’t Let Supervisors Date Subordinates

How should you combat workplace romances? Employers can adopt policies on personal relationships in the workplace that specifically prohibit supervisors and managers from engaging in any romantic relationships with employees at the company, including direct and indirect subordinates.

If you choose to adopt such a policy, it should state that such relationships raise ethical and fairness issues and problems with favoritism and morale, and that they will not be tolerated. Employers should also spell out what will happen if such a relationship is discovered.

Some employers confront the couple, indicate that, if they wish to continue the relationship, one must resign, and let the employees decide who will resign. Other employers confront the employees and terminate the employment of one or both of them effective immediately. It depends on the stance your business wants to take.

Love Rules

What if you don’t want to prohibit such relationships at your workplace? Another approach used by some employers is to have employees in a relationship enter into a ‘love contract.’

Such a document essentially memorializes, in writing, the consensual nature of the employees’ relationship. Be careful here, though. Love contracts are not prospective, as they will not limit the company’s liability for future sexual harassment and/or discrimination and retaliation claims. They may only be helpful to demonstrate that there was a consensual relationship between the employees before and at the time the employees signed the contract.

You Oughta Know

All employers can learn a valuable lesson from the situation involving McDonald’s. Each employer should consider how it wants to handle workplace romances before one becomes an issue for its business. Having a plan or policy in place could save you a lot of heartaches … I mean, headaches.

(The author wishes to thank Neil Sedaka, Nazareth, Meat Loaf, Don Henley, and Alanis Morissette for their wise lyrics about love.)

Amelia J. Holstrom is a partner with Skoler, Abbott & Presser, P.C., one of the largest law firms in New England exclusively practicing labor and employment law. Holstrom specializes in employment litigation, including defending employers against claims of discrimination, retaliation, harassment, and wrongful termination, as well as wage-and-hour lawsuits. She also frequently provides counsel to management on taking proactive steps to reduce the risk of legal liability; (413) 737-4753; [email protected]

Opinion

They call it ‘employee ghosting.’

By now, just about everyone has heard the phrase, and most employers have actually experienced it. While definitions vary, the most common form of ghosting occurs when an individual is offered a job, accepts it, and then, on what would be their first day on the job, doesn’t show up, because between the time when they accepted the job and when they were supposed to start, something better came along.

But it also happens with interviews — a candidate will agree to one and just not show up for it — and with already-hired employees — they’re in the office one day, and the next day they’re not, usually without explanation.

Ghosting is a byproduct of a tight unemployment market, immense competition for good talent, and, maybe (according to some) a desire for payback among individuals who applied for a job, interviewed for it (maybe a few times, even) and then never heard from the potential employer again.

In any case, while ghosting is a fairly recent phenomenon and a sign of the current times, it is also part of what we believe will be a new norm for employers, and not a temporary inconvenience. That’s because demographics certainly favor employees; Baby Boomers are retiring, and the generations following them are considerably smaller.

Yes, we know that advancing technology will eventually reduce or eliminate certain types of employment opportunities — depending on whom one talks with, we won’t have much need for truck drivers or even lawyers soon — those days are a ways off. For now, employers must cope with this new norm. And that’s why BusinessWest partnered with Garvey Communication Associates Inc. (GCAi) this month to present a morning-long series of workshops called “Attracting the Best Candidates in Possibly the Worst of Times”.

Whey these are, indeed, the worst of times — for employers, anyway; for candidates, it’s the best of times — things are probably not going to change much moving forward. Yes, the economy will eventually decline, and yes, the unemployment rate will climb, but for a host of reasons, including demographics, employers shouldn’t expect to be in the driver’s seat anytime soon.

In this environment, they have to do things differently than they have for decades. In short, they have to create an attractive culture — one people want to be part of — and then sell that culture.

Sarah McCarthy, senior Human Resources business partner for Commonwealth Care Alliance and member of a panel at the Sept. 20 event, probably summed things up best when she said, “it’s not an environment where people are coming to you; you have to do some mining and find these individuals and encourage them to come work for you, and in doing that, you need to provide context for them — why should they want to come work for you?”

Indeed, why should they? Employers will have to come armed with reasons, and they must involve more than a number on the paycheck — although that’s always important. And it will have to involve more than flex time and casual Fridays.

As John Garvey, president of GCAi, put it, “people want to be a part of something they’re passionate about. That’s important. And that requires us to talk to them in different ways and develop talent in different ways — and also to reach out in different ways.”

Note that word ‘different.’ That’s the key. Companies can’t do things the way they used to, they can’t talk to candidates like they used to, and they can’t sell themselves like they used to.

These are different times, and in most ways, they represent what is a new norm. And if companies don’t understand this, they will soon come to understand what employee ghosting is all about.

Law

A Disturbing Trend

By Amelia J. Holstrom, Esq.

Amelia J. Holstrom, Esq.

Amelia J. Holstrom, Esq.

The #MeToo movement exploded back in 2017. With #MeToo in the news almost a daily, women everywhere became more comfortable coming forward and reporting harassment and telling their stories.

As a result, women felt empowered, but has sharing their stories hurt them in other ways? According to a recent survey conducted by LeanIn.org, the answer to that question might be yes.

Over the past two years, LeanIn.org — an organization dedicated to helping women come together and achieve their goals — conducted surveys to gain an understanding of what individuals are experiencing at work. One of the surveys revealed that, in the post-#MeToo world, women may be receiving less support at work from male managers and may be hindered in their ability to seek career advancement.

The survey, titled “Working Relationships in the #MeToo Era,” suggested that 60% of male managers reported they were not comfortable participating in common work activities — mentoring, working alone, or socializing — with women.

To put that into perspective, according to LeanIn.org, that percentage was only 32% just a year ago. The survey also noted that senior-level men were 12 times “more likely to hesitate to have one-on-one meetings” with junior female employees, nine times “more likely to hesitate to travel [with junior female employees] for work,” and six times “more likely to hesitate to have work dinners” with junior female employees. According to the survey results, 36% of men said they avoided mentoring or socializing with women because they were concerned about how it might look.

Worrisome Results for Employers

The results suggest that #MeToo may actually lead to more gender discrimination in the workplace. If male members of management distance themselves from mentoring, working alone with, and socializing with women, they might be creating legal liability for their employer because they are giving women less opportunity to advance and succeed with the organization.

For example, while work performance is always a factor in decisions regarding promotions, skills learned through mentoring and workplace connections and relationships also play an important role. If a female employee is denied a promotion due her lack of mentorship and/or workplace connections and relationships, and she did not have access to those things like her male colleagues did simply because of her gender, the employer could be subject to a gender-discrimination lawsuit.

The survey did contain some good news for employers: 70% of employees, compared to 46% in 2018, reported that their company was doing more to address sexual harassment. The increase in this statistic is likely because more employers are conducting annual sexual-harassment training in the post-#MeToo world. Unfortunately, the remainder of the survey results suggest that training alone is not enough.

Proactive Steps

Employers should continue to address harassment in the workplace through their anti-harassment policies and by conducting annual anti-harassment training, but they also need to do more to educate employees regarding other forms of discrimination.

First, employers should have an equal-employment-opportunity policy that clearly outlines that discrimination based on gender or any other characteristic protected by law is expressly prohibited. The policy should also outline how an employee may file an internal complaint of discrimination at the workplace.

Second, employers should add annual anti-discrimination training to their training agenda. Implementing effective training will demonstrate that you care about the issue and are taking it seriously, which could help you defend against a lawsuit if an employee decides to bring one.

Finally, employers should remember that gender discrimination doesn’t just arise in this context. Businesses should take a close look at compensation practices to be sure there are no pay-inequity issues. Studies show that women in America earn about 80 cents for every dollar paid to men. Not only is this wage gap a fundamental problem, but it can also lead to serious legal trouble for an employer. Case in point: the World Cup-champion U.S. women’s soccer team’s lawsuit alleging pay inequity and “institutionalized gender discrimination.”

Bottom Line

It is clear that #MeToo has led to important changes in the workplace, but LeanIn.org’s recent study suggests that employers need to continue to be proactive and take steps to create a culture free from harassment, but also address other forms of discrimination.

The full survey results can be found at leanin.org/sexual-harassment-backlash-survey-results.

Amelia J. Holstrom is an attorney with Skoler, Abbott & Presser, P.C., one of the largest law firms in New England exclusively practicing labor and employment law. Holstrom specializes in employment litigation, including defending employers against claims of discrimination, retaliation, harassment, and wrongful termination, as well as wage-and-hour lawsuits. She also frequently provides counsel to management on taking proactive steps to reduce the risk of legal liability; (413) 737-4753; [email protected]

Education

Closing the Skills Gap

Caron Hobin says Strategic Alliances can help fill skills gaps that exist in the region’s workforce.

The ever-changing workforce environment is a continuous challenge for employers seeking qualified people to fill their positions.

However, not all employers are looking for people with a college degree. In fact, the World Economic Forum reported recently that skills are in higher demand in the labor market than occupations and degrees.

This is one of the many reasons why Bay Path University started a new division on campus — Strategic Alliances, which provides customized training and learning experiences for area employees, as well as the latest online certifications and recertifications.

Caron Hobin, Bay Path’s vice president of Strategic Alliances, said the goal for this new division is a direct reflection of the overall mission of what was then Bay Path Institute when it was founded in 1897. And that is to always be attentive to the needs of the employers in the region and to make sure the university is preparing prospective employees to succeed in the workplace.

“That’s what I see our division doing here in an authentic way,” said Hobin, adding that this initiative strives to help employers target areas of recognized need through specialized training. Whether the focus is on cultivating emotional intelligence, working in teams, storytelling for success, or any other topic a company may need help with, Strategic Alliances uses carefully selected faculty from Bay Path as well as practitioners who have expertise in the topic to create programs that address these issues.

“Time is always of the essence, money is critical, so how do you provide training, and how do you help close the skills gap that employers say is definitely an issue out there?” said Hobin. “We do discovery sessions with companies and prospective clients, and we listen to what they are looking for, and then we create customized programs to meet their needs.”

She said these trainings may last anywhere from a few hours to weeks or months; however, she does her best to encourage companies to choose a lengthier program in order to get the most out of the experience, noting that, if the goal is changed behavior, employers aren’t going to get it with a one-hour training.

Longmeadow-based Glenmeadow, which provides of variety of senior-living options, is one of about a dozen clients of Strategic Alliances. It recently completed a six-month leadership academy for all its managers.

“They used a best-practice model for adult learning, which is learning something new and then putting it into practice,” said Hobin. “It’s not theory; it’s not just a couple of hours, then you’re done. You go through an intensive training.”

“We do discovery sessions with companies and prospective clients, and we listen to what they are looking for, and then we create customized programs to meet their needs.”

Anne Miller, Glenmeadow’s vice president of Operations, scheduled six training sessions with Strategic Alliances for 20 managers at the facility, with each three-hour session going into detail on specific topics, with the aim of improving overall leadership skills. After each training session, Miller put together breakout sessions held at Glenmeadow that helped her employees apply what they learned from the trainings.

“We wanted to do some things that reinforced some of the training or actually made it come to life a bit,” Miller told BusinessWest, adding that post-training sessions are important in order to help with retaining and applying what’s been learned.

These training sessions, conducted by a host of individuals from Bay Path, covered a wide array of topics ranging from how to de-stress to how to complete a good performance review, which Miller said are critically important for customer-service purposes within the many aspects of Glenmeadow’s broad business portfolio.

“I think it set a good base for us to continue the learning,” she said.

Interactive Approach

Glenmeadow’s case provides a perfect example of how Strategic Alliances works and why it was created, said Hobin, adding that, today, adult learners not only want to learn new information, but they want interactive, applied learning that goes along with it.

So, after the initial presentation session, Strategic Alliances hosts a practice session, where participants take the training they’ve received and apply it using strategies like role play in order to engage the employees.

Hobin said this training, coupled with ongoing work to determine specific needs among industry sectors and specific businesses, helps Strategic Alliances tweak its customized programs. And it also helps Bay Path when it comes to teaching students in its classrooms.

“We recognize that, with declining numbers of high-school graduates and with just a changing work environment going forward, we are going to need to find new markets,” she said, referring to the need to improve the skills of those already in the workplace and those seeking to advance within the workforce. “We can tell you very concretely that these are the skill sets that employers are looking for.”

Bay Path also partners with MindEdge, a provider of online continuing-education courses, to deliver various certifications and recertifications to any interested student or employee. When Bay Path launched its American Women’s College, its online degree program, Hobin said, she was hearing that more and more employers were not necessarily interested in people having a degree, but rather specific skill sets and certifications.

She hopes this will encourage students to get a professional certification before graduation, and she has a specific goal for the future — to have every Bay Path student complete a certification before they graduate.

For now, Hobin said Bay Path is implementing several strategies to reach out to the community, improve the visibility of Strategic Alliances, and build relationships with area business and economic-development-related agencies.

In addition to being a member of several local chambers of commerce, Strategic Alliances hosts virtual roundtables which provides viewers with a free, one-hour training course on various topics, which Hobin said have brought in many interested companies. These videos host a panel of professionals in the field and have focused on topics including using one’s power voice, having difficult conversations in the workplace, and diversity and inclusion.

Overall, Hobin wants Strategic Alliances to be a resource for the region, its business community, and individuals who want to be better-equipped to succeed in an ever-changing workplace.

“We’re here,” she said. “We’re interested in innovative approaches to professional development going forward.”

— Kayla Ebner

Law

Paid Family and Medical Leave

By John S. Gannon, Esq. and Amelia J. Holstrom, Esq.

John S. Gannon

John S. Gannon

Amelia J. Holstrom, Esq.

Amelia J. Holstrom

Businesses have had almost a year to prepare for the implementation of Paid Family and Medical Leave (PFML) in Massachusetts. Still, many questions remain, and the first critical date — July 1 — is right around the corner.

Here are five things that should be at the top of your to-do list as employers in the Commonwealth prepare for PFML.

Decide How to Handle Tax Contributions

PFML is funded through mandatory payroll contributions that begin on July 1. Currently, the contribution is set at 0.63% of an employee’s eligible wages. Because PFML covers two types of leave — medical leave and family leave — the state Department of Family and Medical Leave (DFML) has attributed a portion of the contribution (82.5%) to medical leave and the remainder (17.5%) to family leave. As if that wasn’t confusing enough, employers are permitted to deduct up to 100% of the family-leave contribution and up to 40% of the medical-leave contribution from an employee’s pay. Employers with 25 or more employees are required to pay the rest.

Although employers can pass on a lot of the contribution to the employee, businesses should consider whether to pay a portion, or even all, of the employee’s portion. When doing so, employers should consider the impact on morale, whether an employee is more or less likely to use the leave if they are paying for it, and whether the employer can afford to do more.

Provide the Required Notices

Employers are required to provide notice to employees about PFML on or before June 30. Two separate notices are required — a workplace poster and a written notice distributed to each employee and, in some cases, independent contractors. The mandatory workplace poster must be posted in English and each language that is the primary language of at least five individuals in your workforce if the DFML has published a translation of the notice in that language. Posters are available on the DFML website.

“It goes without saying that employees will have less incentive to return to work once PFML goes live. This undoubtedly will increase the amount of time employees are out of work.”

The written notice must be distributed to each employee in the primary language of the employee and must provide, among other things, employee and employer contribution amounts and obligations and instructions on how to file a claim for benefits. Employees must be given the opportunity, even if provided electronically, to acknowledge or decline receipt of the notice. The DFML has issued a model notice for employers to use.

Employers must get these notices out by June 30, but also within 30 days of an employee’s hire. Failure to do so subjects an employer to penalties.

Consider Private-plan Options

Employers who provide paid leave plans that are greater than or equal to the benefits required by the PFML law may apply for an exemption from making contributions by applying to the DFML. Employers can apply for an exemption to family-leave or medical-leave contributions, or both. Private-plan approvals are good for one year, and, generally, will be effective the first full quarter after the approval.

However, the DFML has made a one-time exception for the first quarter — July 1 through Sept. 30. Employers have until Sept. 20 to apply for an exemption, and any approval will be retroactive to July 1. Employers should consider whether this is a viable option for them before employees can begin taking leave on January 1, 2021.

There are benefits to doing so, but employers should consider the potential cost. If an employer chooses to self-insure its private plan, it must post a surety bond with a value of $51,000 for medical leave and $19,000 for family leave for every 25 employees. Employers may also have the option to purchase a private insurance plan that meets the requirements of the law through a Massachusetts-licensed insurance company.

Review Current Time-off and Attendance Policies

The principal regulator of frequent leaves of absence is the fact that employees are not getting paid for this time away from work, absent company provided paid time off like sick or vacation time. Once those company-provided benefits are used up, the employee is not getting a paycheck.

Naturally, this gives employees motivation to get back to work and on the payroll. Unfortunately, when Jan. 1, 2021 comes around, businesses will lose this regulator as PFML will be paid time off, up to a cap of $850 per week (and up to a whopping 26 weeks of paid time off per year).

It goes without saying that employees will have less incentive to return to work once PFML goes live. This undoubtedly will increase the amount of time employees are out of work. Therefore, businesses should be reviewing their current time-off and attendance policies to determine whether changes should be made in light of this forthcoming law. Are you providing too much paid time off already? Should you develop stricter requirements surrounding absenteeism and employee call-out procedures?

The time is now for discussing these changes as modifications to leave and attendance policies take time to think through and implement.

Plan for Increased Staffing Challenges

Many businesses and organizations throughout the region are currently dealing with significant staffing difficulties due to historically low unemployment rates. This challenge is only going to increase when the leave protections of PFML kick in on Jan. 1, 2021.

We recommend that employers try to get out in front of this by having meetings and possibly forming committees tasked with planning for expected workforce shortages. Consider increasing per-diem staff as regular staffers are likely to have more time off and call-outs from work. Consult with staffing agencies to explore whether temporary staffing will be an option if (and when) employees take extended PFML. Whatever you do, don’t wait until late next year to address potential staffing problems.

Bottom Line

PFML is certainly going to be a challenge for employers to deal with, particularly smaller employers who are not already familiar with leave laws like the federal Family and Medical Leave Act. Although it may seem as though the sky is falling on employers, with proper and careful planning and guidance from experts, transitioning into the world of PFML should be reasonably manageable.

John S. Gannon and Amelia J. Holstrom are attorneys with Skoler, Abbott & Presser, P.C., one of the largest law firms in New England exclusively representing management in labor and employment law. Gannon specializes in employment litigation and personnel policies and practices, wage-and-hour compliance, and non-compete and trade-secrets litigation. Holstrom devotes much of her practice to defending employers in state and federal courts and before administrative agencies. She also regularly assists her clients with day-to-day employment issues, including disciplinary matters, leave management, compliance, and union-related matters; (413) 737-4753; [email protected]; [email protected]

Employment

More Than a Job

President Tricia Canavan

President Tricia Canavan

At its core, the mission of a staffing agency is to connect employers with job seekers — a task United Personnel has tackled with success for 35 years. But creating those matches doesn’t occur in a vacuum. Rather, building a healthy workforce is a region-wide effort that makes demands of employers, colleges, training programs, K-to-12 schools, and lawmakers. United Personnel President Tricia Canavan recognizes this big picture — and her firm’s role in closing the gaps.

Tricia Canavan’s job is to help people get jobs, and to help companies find those people. It’s that simple — only, it’s not.

“Workforce development and education are things I’m really passionate about and involved in in a variety of ways,” she told BusinessWest. “We’ve heard about the skills gap and the disconnect between people who are not working or are underemployed, and employers who are saying they can’t expand because they don’t have the staff they need, and they have to turn work away because there’s not enough employees. There’s a real disconnect. So, what are the strategies we can use to be able to bridge that gap?”

As president of United Personnel, Canavan connects job seekers to regular paychecks every day. But the challenge of doing so runs far deeper than many might assume. In fact, for many, it starts well before kindergarten.

“I think we need to be really comprehensive and innovative in how we look at workforce develoment and education, even K to 12. They call it cradle to career — you want to start kids with a really good background to enter kindergarten.”

Consider, she said, that only 7% of Springfield children are considered kindergarten-ready when they enter school, and if they don’t hit reading proficiency by third grade, it sets them on a never-ending pattern of playing catchup.

“It’s said that, from kindergarten to third grade, you’re learning to read, and from third grade on, you’re reading to learn,” Canavan said. “So if your reading-comprehension skills are not where they need to be, it’s a very tough thing to make that up. The gaps start young, and they persist, and continue through high school.”

Beyond high school, in fact, contributing to what are commonly known in the employment world as skills gaps. Which brings her back to her daily role, one she tackles with a decidedly big-picture view.

“I think the disconnect and the skills gap we see is not only a challenge and a missed opportunity for local residents, but it also is an economic-development concern,” she said. “Ultimately, employers need the skilled workforce to be able to grow, and if we, over the long term, or even the medium term, are not able to produce better results at a time when Massachusetts population is pretty flat, we’re going to have a problem. It’s critical that we’re engaging as many of those residents as can work and want to work, and making sure they have the skills they need to be successful for themselves and their families, too.”

In today’s reasonably healthy economy, Canavan said, good jobs exist. She knows, because she’s got a large roster of clients that want to fill them.

“If we cannot access candidates that have the skill sets that employers need, we will not be viable as an organization. So we have some serious skin in this game,” she went on. “But I also see it as a social-justice issue. If we can do better in these fields of education and workforce development, if we can connect people with the opportunties that exist in ways they had not been connected before, that can be a game changer.”

“I think the disconnect and the skills gap we see is not only a challenge and a missed opportunity for local residents, but it also is an economic-development concern.”

For this issue’s focus on employment, BusinessWest sat down with Canavan to talk about the ways her 35-year-old firm continues to close the gaps between job creators and job seekers, and the myriad ways that task is complicated by a lifetime of factors.

Steady Growth

Jay Canavan, Tricia’s father, transitioned from a career as president of Springfield Museums to launch United Personnel in 1984; his wife, Mary Ellen Scott, joined him about six months later, eventually serving as the company’s long-time president until eight years ago, when Tricia took the reins.

Jay and Mary Ellen opened their first office in Hartford, specializing in professional, administrative, and finance services. A few years later, they opened a second office in Springfield, focusing on support to the light industrial sector. Today, the firm also boasts offices in Northampton, Pittsfield, Chelmsford, and New Haven.

Meanwhile, its roster of specialties has grown to include manufacturing, hospitality, information technology, nonprofits, medical offices, and even a dental-services division, which has proven to be a significant growth area.

“Then we continue to focus on some core competencies,” she noted. “We do a lot of vendor-on-premises account management, where we provide turnkey human-resources support for our clients.”

One example is Yankee Candle, a business whose staffing level fluctuates through the ebbs and flows of the retail seasons. “Back in the day, people would hire and lay off, hire and lay off, Now, using a vendor-on-premises model, we partner with their human resources and production teams, and we manage seasonal staffing for them in a turnkey way. We have management on site 24/7, so their human resources and production teams can focus on their core business, and we supplement those activities.”

Cavanan said she enjoys working in partnership with clients because it allows United to become a part of their business and operational strategy and provide real value.

“Because we deal with such a wide variety of clients, we’re often able to take best practices and lessons learned and apply them to new clients. It’s almost like a knowledge-sharing service that we offer. And we’ve been really pleased with the results of some of that expertise we’ve been able to implement.”

Whether it’s helping clients with continuous improvement, staff-retention strategies, or joint recruiting events, she said United does its best work when it’s able to take on that level of partnership.

“If clients are open to this, we’re able to take an advisory and consulting role where we share with them, ‘here are some things we’re seeing in the marketplace.’ Oftentimes, it’s even current employment law,” Canavan said, noting that, just last week, United showed a client that one of its incentive programs was no longer legal due to changes in the law.

“We’re really proud of being able to serve as subject-matter experts in terms of recruitment, but also often in terms of human-resources compliance,” she went on. “We’re not attorneys, but because of the nature of what we do, we frequently have a very good finger on the pulse of what’s happening in compliance and employment law.”

Those various human-resources services are often crucial to smaller clients that may not have an in-house HR team or, at best, have one person handling everything from benefits and compliance to performance management and recruitment.

“To recruit well and comprehensively in a very tight labor market is extremely time-consuming,” she said. “Not only are we doing it all day, every day, but we have the infrastructure to find not only candidates that are actively seeking employment, but also candidates who might be open to considering a new job. And being able to partner with small and medium-sized customers allows us to bring them support with services they likely don’t have time to do. We’re really proud of that aspect of our work.”

Work Your Way Up

But Canavan is also proud of the big-picture view United takes of the region’s jobs landscape, citing efforts like the Working Cities grant that aims to better align workforce-development efforts and produce positive results for both job seekers and employers. “The economy is good, so let’s use this time to focus on training those who need it.”

Many well-paying careers, she noted, are in reach without a college education for those who are willing to access training, start small, and work their way up — in advanced manufacturing, for instance. The MassHire career centers offer training programs in that realm, but the classes aren’t always full. “How do we do a better job helping people build awareness of those opportunities, connecting them to those opportunities, and supporting them through it?”

United Personnel has been headquartered in Springfield

For most of its history, United Personnel has been headquartered in Springfield — currently on Bridge Street — but its reach expands far beyond this region.

There are institutional barriers as well, such as the so-called ‘cliff effect’ that throws up financial disincentives to people on public benefits who want to work. She said a bill currently making its way through the state Legislature would address that scenario through a pilot program that would help low-income Springfield residents access jobs while reducing the need for public benefits.

On an individual level, part of United Personnel’s mission is to dismantle as many roadblocks to employment as it can, Canavan explained. For example, employers typically prefer to hire someone with at least six months of recent, steady work without gaps. But, realizing there are reasons those gaps exist, United offers myriad short-term jobs to help people build a portfolio and references and prove they can handle something more permanent.

“It’s not that hard to be successful. It’s being on time, paying attention, staying off your phone. And, if you’re successful, you’ll find lots of opportunities for career pathways.”

“We’re really proud of being able to serve as subject-matter experts in terms of recruitment, but also often in terms of human-resources compliance. We’re not attorneys, but … we frequently have a very good finger on the pulse of what’s happening in compliance and employment law.”

She understands that some job seekers, especially younger ones, often struggle with those ‘soft skills.’

“It may be a lack of awareness, or not being super engaged in the work they’re doing. Entry-level jobs can frequently be boring or repetitive — it may not be the most exciting day you’ve ever had in your life,” she went on, noting that one of her first jobs out of college was a temp role in Chicago, doing numeric data entry all day. “It was terrible. But we’ve all had those jobs.”

The idea is to use every opportunity — whether a temp job or a training program — as a chance to move up to something better. And when job seekers do just that, it’s especially gratifying.

“It’s not our success, it’s their success. We just helped them get a foot in the door,” she said. “A lot of people don’t realize the opportunities that come from working with a staffing firm. We can be your advocate. We can help you. Lots of jobs are available — start small, and you can work your way up.”

Community Focus

United Personnel has certainly worked its way up over the past 35 years, not just in helping people find jobs and helping clients run their businesses more efficiently, but through a culture of community support. Team members are encouraged to volunteer and serve on boards, while the company itself offers financial support to numerous organizations in areas like workforce development and education, women’s leadership, community vitality, and arts and culture. One program is an endowed scholarship at the Community Foundation of Western Massachusetts for first-generation college students from area gateway cities.

“We’re interested in leveraging what we do and whatever financial resources we have available to us,” Canavan told BusinessWest. “We consider it a privilege to be able to do that. We don’t just want to be here to do business; we want to be a part of the community. We are all very cognizant of the fact that we are successful because of our community.”

That said, she noted that legislative mandates from Boston continue to burden employers and make it more difficult than ever to do business in Massachusetts. Which makes it even more important for her to make clients’ lives a little easier.

“We feel honored to be able to do this work with our customers and candidates that come to us. When a client is happy with what we’ve done, or a candidate comes to us with a table-sized box of chocolates to say ‘thank you,’ that’s rewarding. It’s a privilege to help people find work and help companies find that talented staff they need to drive the success of their organization.”

Joseph Bednar can be reached at [email protected]

Opinion

Opinion

By Mark Adams

The ripple effects of the government shutdown have started to come to bear on employers.

Specifically, due to the partial government shutdown that began on Dec. 22, 2018, the E-Verify system is not available. According to the E-Verify site, operated by the Department of Homeland Security (DHS), “E-Verify is currently unavailable due to a lapse in government appropriations. While E-Verify is unavailable, employers will not be able to access their E-Verify accounts. We apologize for any inconvenience and look forward to serving you once we resume operations. For more information, see E-Verify Unavailable.”

During the shutdown, employers will not be able to enroll in the program; access their E-Verify accounts; create a case; view or take action on any case; add, delete, or edit accounts; reset passwords; edit company information; terminate accounts; or run reports. Workers will not be able to resolve E-Verify Tentative Nonconfirmations (TNCs) during the shutdown.

In addition, myE-Verify will be unavailable, and employees will not be able to access their myE-Verify accounts.

To minimize the burden on both employers and employees, DHS announced that:

• The three-day rule for creating E-Verify cases is suspended for cases affected by the unavailability of the service;

• The time period during which employees may resolve TNCs will be extended. The number of days E-Verify is not available will not count toward the days the employee has to begin the process of resolving their TNCs; and

• Federal contractors with the Federal Acquisition Regulation E-Verify clause should contact their contracting officer to inquire about extending federal contractor deadlines.

Further information about what is and is not available online can be found at www.e-verify.gov/e-verify-and-e-verify-services-are-unavailable.

The shutdown does not affect an employer’s responsibility to verify employment eligibility through the Form I-9. Employers must still complete the Form I-9 no later than the third business day after an employee starts work for pay and comply with all other Form I-9 requirements.

Once the government operations fully resume, DHS will notify employers with additional guidance regarding the ‘three-day rule’ and time period to resolve TNC deadlines once operations resume.

Mark Adams is director of HR Services for the Employers Assoc. of the NorthEast (EANE), an Agawam-based company that provides resources for organizations to maximize employee engagement and retention while minimizing risk.

buy ivermectin for humans buy ivermectin online buy generic cialis buy cialis payday loans online same day deposit 1 hour payday loans no credit check