Gibbons Law Alert

Gibbons Law Alert

Tagged: Leave

IRS Provides Important Guidance for Employer Leave Programs for Donations to Aid Ukraine

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Posted in Employee Benefits

On May 23, 2022

Since the Russian Federation invasion of Ukraine on February 24, 2022, many employers have adopted or are considering adopting employer leave-based donation programs to aid citizens and residents of Ukraine, persons working, traveling, or currently present in Ukraine, or refugees from Ukraine. On May 19, 2022, the IRS issued Notice 2022-28, which provides important guidance on the federal income and employment tax treatment of cash payments made by employers to charitable organizations under these programs. The guidance is similar to the guidance in Notice 2001-69, as modified and superseded by Notice 2003-2, on charitable donations made after the September 11, 2001 terrorist attacks. Under employer leave-based donation programs, employees can elect to forgo vacation, sick, or personal leave in exchange for their employers making cash payments to charitable organizations to aid the victims of the invasion. The organizations must qualify as charitable organizations under Section 170(c) of the Internal Revenue Code. Payments made before January 1, 2023 will not be treated as gross income, wages, or other compensation to the employees. Similarly, employees electing or who have the opportunity to elect to forgo the leave that funds the payments will not be treated as in constructive receipt of taxable income. Employers should not include the payments in Boxes 1, 3, or 5 of the electing...

IRS Issues Guidance on an Employee’s Reduction in Hours and Involuntary Termination of Employment to Qualify for the 100 Percent COBRA Premium Subsidy

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Posted in Employee Benefits / Family Leave / Federal Legislation / Insurance / Sick Leave

On June 2, 2021

The American Rescue Plan Act of 2021 enacted on March 11, 2021 (the “Act”) provides a federally-funded, 100 percent subsidy for the premiums for COBRA continuation coverage from April 1, 2021 to September 30, 2021 for assistance eligible individuals. On May 18, 2021, the IRS issued Notice 2021-31, which provides comprehensive guidance on all aspects of the subsidy. The Notice is in the form of 86 questions and answers and spans 41 single-spaced pages. This news alert focuses on the guidance dealing with the two events that trigger entitlement to the subsidy: a reduction in hours and an involuntary termination of employment. The guidance on reduction in hours is found at Q&A 21 to 23, and on involuntary termination of employment at Q&A 24 to 34. Definition of Assistance Eligible Individual The Act defines an assistance eligible individual as an individual who: Is a qualified beneficiary for a period of COBRA continuation coverage that includes the months between April 1, 2021 and September 30, 2021; Is eligible for COBRA continuation coverage due to a reduction in hours or an involuntary termination of employment other than for gross misconduct; and Elects COBRA continuation coverage. Other COBRA qualifying events, such as a voluntary termination of employment, a child’s aging out of dependent status, or divorce, do not...

New York State Enacts Law Providing Paid Time Off for COVID-19 Vaccination

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Posted in Discrimination / Employee Benefits / Policies and Handbooks

On March 25, 2021

Governor Andrew Cuomo recently signed legislation S2558A/A3354-B granting all public and private employees in New York paid leave to obtain a COVID-19 vaccine. The new legislation, which is effective as of March 12, 2021 and expires on December 31, 2022, amends the New York Civil Service Law (with respect to public employees), along with the New York Labor Law, and provides public and private employees with up to four hours of paid leave per vaccine injection. In connection with this legislation, the New York Labor Law was amended to add Section 196-c, which provides that: New York employees must receive paid COVID-19 vaccine leave of up to four hours per vaccine injection. Thus, employees receiving a two-injection COVID-19 vaccine (such as those currently offered by Pfizer and Moderna) will receive up to eight hours of paid leave to obtain the vaccine. The “four hour” maximum does not apply to an employee subject to a collective bargaining agreement (CBA) providing a greater number of hours of leave to obtain the vaccine or where an employer authorizes additional time off for employees to receive the vaccine. The leave must be paid at an employee’s regular rate of pay. The leave cannot be charged against “any other” employee leave. Accordingly, employers cannot require employees to use other available...

FFCRA Benefits Become Optional and Unemployment Benefits Change With New Stimulus Package

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Posted in Employee Benefits / Family Leave

On January 7, 2021

On December 27, 2020, President Donald Trump signed the fourth major COVID-19 response bill into law. The stimulus package includes focused relief in a variety of areas (see our December 21, 2020 post), but two important elements are worth highlighting for employers. First, there have been several changes to pandemic-related unemployment insurance benefits since guidelines were first provided last spring. Second, the emergency paid sick leave and expanded family and medical leave benefits provided under the Families First Coronavirus Response Act (FFCRA), explained here, expired on December 31, 2020 and were not extended, but employers who opt to offer them remain eligible for tax credits. Unemployment Insurance (UI) Benefits Supplement and Extension The Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) provided eligible recipients of state unemployment benefits with an additional $600 per week in federal benefits, which expired in July 2020. The new stimulus package provides eligible individuals who are already collecting state-provided unemployment benefits with an additional $300 per week in federal benefits ($300 less than the last stimulus relief package) for up to 11 weeks through March 14, 2021. These payments, however, are not retroactive to July 2020. The new stimulus package also extends the Pandemic Unemployment Assistance (PUA) and Pandemic Emergency Unemployment Compensation (PEUC) programs. PUA provides benefits to individuals...

The DOL Amends FFCRA Paid Leave Rule

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Posted in Sick Leave

On October 23, 2020

The United States Department of Labor’s Wage and Hour Division (“DOL”) recently announced amendments to regulations regarding the paid leave provisions of the Families First Coronavirus Response Act (FFCRA). By way of background, and as discussed in detail in our prior blog post, the FFCRA provides two types of leave to employees of covered employers (private employers with fewer than 500 employees and public employers of any size, with certain exceptions) – emergency paid sick leave (EPSL) and expanded family and medical leave (EFML). An employee may be eligible for 80 hours of EPSL if he or she is unable to work or telework (without regard to the employee’s length of employment) if the employee: Is subject to a federal, state, or local quarantine or isolation order related to COVID-19; Has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19; Is experiencing COVID-19 symptoms and seeking a medical diagnosis; Is caring for an individual who is subject to a quarantine or isolation order, or has “been advised” to self-quarantine; Is caring for a child, because the child’s school or place of care has been closed (or the child’s care provider is unavailable) due to COVID-19 related reasons; or Is experiencing any other substantially-similar condition specified by the Secretary of Health...

New York State Enacts Expansive Statewide Sick Leave Law

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Posted in Employee Benefits

On April 20, 2020

On April 3, 2020, Governor Cuomo signed into law New York State’s fiscal year 2021 budget, which adds a new section 196-b to the New York Labor Law to include sick leave requirements for New York employers of all sizes, and which the Governor’s office has described as the strongest paid sick leave law in the nation. Although employees may not begin to use sick leave under the new law until January 1, 2021, current employees begin to accrue leave on September 30, 2020. (As discussed in our prior blog, the State also recently passed a COVID-19 sick leave law that provides leave for New York employees who are subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19.) Key provisions of the new law are summarized below. Amount and Accrual of Sick Leave The amount of sick leave an employer must provide employees, and whether such leave must be paid, depends on an employer’s size, and for certain employers, income level. Employers with four or fewer employees in any calendar year must provide employees with up to 40 hours of unpaid sick leave in any calendar year; except that if such an employer has a net income of greater than $1,000,000 in the previous tax year, the leave must be...

The U.S. DOL Issues Updated Guidance on CARES Act Unemployment Programs

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Posted in Employee Benefits

On April 17, 2020

Since our March 28, 2020 post, “Phase Three COVID-19 Response Bill Now Law: What it Means for Businesses and Employees,” the United States Department of Labor (DOL) has issued three additional Unemployment Insurance Program Letters (UIPL), No. 15-20, No. 16-20, and No. 17-20, to provide additional guidance to states on the administration of the three unemployment insurance programs available under the CARES Act. UIPL No. 15-20 UIPL No. 15-20, issued on April 4, 2020, addresses Section 2104 of the CARES Act—Federal Pandemic Unemployment Compensation (FPUC) benefits—which provides “eligible” individuals who are already collecting state-provided unemployment benefits an additional $600 per week in federal benefits through July 31, 2020. Who is eligible for the additional $600 FPUC payments? Individuals collecting regular unemployment compensation under state programs, Pandemic Emergency Unemployment Compensation (PEUC), Pandemic Unemployment Assistance (PUA), Extended Benefits (EB), Short-Time Compensation (STC), Trade Readjustment Allowances (TRA), Disaster Unemployment Assistance (DUA), and Payments under the Self-Employment Assistance (SEA) program. FPUC is not available, however, for those receiving “additional benefits” (referred to as “extended benefits” by state UC programs) that extend the duration of benefits during high unemployment to those in approved training programs who have exhausted benefits, or for several other reasons. Individuals must be eligible for and receiving benefits under the above programs in order to be...

The U.S. Department of Labor Issues Updated Guidance on the FFCRA’s Paid Leave Provisions

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Posted in Family Leave

On April 7, 2020

As the spread of COVID-19 continues to upend our day-to-day routines and creates new questions for employers and employees alike, the U.S. Department of Labor (DOL) has issued and updated guidance on the Families First Corona Response Act (FFCRA), which became effective on April 1, 2020. The FFCRA provides for two types of paid leave: leave under the Emergency Paid Sick Leave Act (EPSLA) and leave under the Emergency Family and Medical Leave Expansion Act (EFMLEA). As a follow-up to our recent blog post, which explored the new legislation in-depth, this article identifies and explains the key points in the DOL’s most recent guidance on the FFCRA’s leave provisions. Which Employers Must Comply with FFCRA’s Paid Leave Provisions? Employers who have fewer than 500 employees at the time an employee requests to take leave are governed by the FFCRA. In calculating the number of employees for coverage purposes, employers must take into account full-time and part-time employees, employees who are already on leave, temporary employees who are jointly employed with another employer, and day laborers. Independent contractors are not considered employees for purposes of calculating the 500-employee threshold. Generally, two or more entities are separate employers for purposes of the 500-employee threshold, unless the entities meet the integrated employer test under the Family and Medical...

New York Employers Fall Review

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Posted in Policies and Handbooks

On September 6, 2018

In 2018, employers in New York encountered several important changes, including in the areas of anti-harassment and scheduling, warranting a Fall review of current employment practices and preparation for next year’s developments. Employers should take the time now to review current practices and prepare for the imminent future. NEW YORK CITY’S TEMPORARY SCHEDULE CHANGE LAW New York City’s Temporary Schedule Change Law (“TSC Law”) became effective July 18, 2018, and requires private employers to provide eligible employees with an allowance of a “temporary change” to their usual work schedule for certain qualifying “personal events” for up to two occasions per year (i.e., one business day twice per year or two business days on one occasion). Eligible employees are those who work at least 80 hours a year in New York City and have been employed by their employer for 120 or more days, with limited exceptions, including employees covered by collective bargaining agreements waiving the law. Temporary schedule changes may include paid time off, use of short-term unpaid leave, permission to work remotely, or working hour swaps or shifts. Qualifying “personal events” include: (a) an employee’s need to: (i) care for a minor child or care recipient (i.e., a person with a disability who is a family or household member and relies on the employee...

Governor Murphy Signs New Jersey Paid Sick Leave Law

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Posted in Employee Benefits

On May 4, 2018

On May 2, 2018, Governor Murphy signed the comprehensive paid sick leave bill passed by the New Jersey Legislature in April. For a description of the law and how it will affect New Jersey employers, please see our previous blog post. For questions regarding this bill, or paid sick leave laws generally, please feel free to contact an attorney in the Gibbons Employment & Labor Law Department.

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