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DINSE RECEIVES TOP RANKINGS IN CHAMBERS USA 2021

Burlington, VT (June 2021) – The 2021 edition of Chambers USA, a leading directory of American lawyers and law firms, recognized 10 Dinse attorneys in their practice areas. The new guide also recognizes the firm as among Vermont’s best in every category of practice.

The firm’s Labor & Employment group received top ranking and was described as a “Distinguished employment law practice, noted for its strength in the education and healthcare sectors. Has additional experience in employee discrimination claims, disciplinary proceedings and grievance procedures. Additional strength in employee benefits concerns, as well as increasing activity in harassment cases stemming from the #MeToo movement.”

The firm’s Litigation group received the highest possible ranking. Clients agreed that the Dinse Litigation team are “Outstanding representatives for our company.”

The firm’s Real Estate group also received the highest ranking. Clients say: “Their client service is terrific,” comments an interviewee, adding: “The team is really deeply embedded in our organization in the best possible way. They bring a deep and sophisticated understanding to our business needs.”

The firm’s highly-ranked Intellectual Property practice is noted as a “Noteworthy practice that specializes in technology licensing, trademarks and copyright matters. Strong experience in domestic and international trademark clearance, prosecution, registration, enforcement and maintenance. Frequently sought out by clients in the higher education and healthcare sectors.”

And the firm’s Corporate/Commercial group was top ranked, with Chambers’ sources saying Dinse is “One of the foremost firms advising on the financing and operation of renewable energy projects throughout the state. Counts well-known locally based corporations among its clients.”

 

 

 

 

Corporate/Commercial

Afi Ahmadi

David Gurtman

Brian R. Murphy

Jeffrey J. McMahan

Intellectual Property       

Jeffrey J. McMahan

Labor & Employment

Amy M. McLaughlin

Karen McAndrew

Litigation: General Commercial/Medical Malpractice & Insurance Defense

Nicole Andreson

Ritchie Berger

Karen McAndrew

Real Estate

Austin Hart

Molly Langan

 

 

Dinse is one of the largest and most respected law firms in Vermont.

At Dinse, client service is our highest priority.

For more information, please visit our website at www.dinse.com.

NEWS

Best Lawyers Selects Two Dinse Attorneys as Lawyer of the Year 2021

Burlington, VT (May 2021) – Dinse P.C. announces that twelve of its attorneys were recognized by Best Lawyers in 2021. Two of the recognized attorneys were also selected by their peers as Best Lawyers Lawyer of the Year 2021. Since it was first published in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence. Because Best Lawyers is based on an exhaustive peer-review survey in which more than 36,000 leading attorneys cast almost 4.4 million votes on the legal abilities of other lawyers in their practice areas, and because lawyers are not required or allowed to pay a fee to be listed, inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”

Lawyer of the Year 2021:

Corporate Law: Jeffrey J. McMahan

Trusts and Estates: Mark A. Langan

NEWS

NICOLE ANDRESON ADMITTED TO THE AMERICAN COLLEGE OF TRIAL LAWYERS

Burlington, Vermont, March 16, 2021 – Dinse P.C. is pleased to announce that Nicole Andreson, a director and shareholder of the firm, has become a Fellow of the American College of Trial Lawyers, one of the premier legal associations in North America.

The induction ceremony at which Ms. Andreson became a Fellow took place online during the recent 2021 Spring Meeting of the College.

Founded in 1950, the College is composed of the best of the trial bar from the United States, Canada and Puerto Rico.  Fellowship in the College is extended by invitation only and only after careful investigation, to those experienced trial lawyers of diverse backgrounds, who have mastered the art of advocacy and whose professional careers have been marked by the highest standards of ethical conduct, professionalism, civility, and collegiality.  Lawyers must have a minimum of fifteen years trial experience before they can be considered for Fellowship.

Membership in the College cannot exceed one percent of the total lawyer population of any state or province.  There are currently approximately 5,800 members in the United States, Canada and Puerto Rico, including active Fellows, Emeritus Fellows, Judicial Fellows (those who ascended to the bench after their induction) and Honorary Fellows.

Ms. Andreson joined Dinse in 2007 and focuses her trial practice on the defense of professional malpractice and catastrophic personal injury actions.  Before joining Dinse, she prosecuted sex crimes at the Chittenden County State’s Attorneys’ Office for several years, and also served as an Assistant Attorney General at the Vermont Attorney General’s Office.  She lives in South Burlington with her husband and two children.

NEWS

Dinse Brief – COVID-19 Vaccine and Employer Vaccination Policies

In light of the Food and Drug Administration’s Emergency Use Authorization of the Pfizer COVID-19 vaccine, and with the same authorization of the Moderna vaccine expected imminently, many Vermont employers will be considering the implications of a COVID-19 vaccine in the workplace, including whether to implement a COVID-19 vaccine policy.  In short, employers are legally entitled to establish mandatory COVID-19 vaccine policies for their employees, as long as the policy includes appropriate exemptions under the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act.  Nevertheless, as discussed in greater detail below, employers may be better served by implementing voluntary COVID-19 vaccine policies, at least for the time being.

Vaccine Policies in General

Prior to the COVID-19 epidemic, the Equal Employment Opportunity Commission (EEOC) and Occupational Safety and Health Administration (OSHA) interpreted mandatory flu vaccination policies by employers as permissible, as long as those policies are job-related and provide the proper exemptions for ADA-covered disabilities and sincerely held religious beliefs under Title VII.

  • ADA:
    • Prohibits employers from excluding individuals with disabilities from the workplace for health and safety reasons unless they pose a “direct threat.”
  • Title VII:
    • Employer must make a reasonable accommodation to an employee with a sincerely held religious belief, including if that belief prevents him or her from taking a vaccine, unless the accommodation would present an undue hardship to the employer.

Unsurprisingly, the EEOC has supported mandatory flu vaccine policies in the health care sector, stating that whether a health care employer would face an undue hardship as a result of an unvaccinated employee depends on factors such as public risk posed and the availability of effective alternative means of infection control.

COVID-19 Context

Employers must consider the same ADA and Title VII exemptions in the context of a COVID-19 vaccination policy.

  • ADA:
    • Under the ADA, the EEOC has explicitly determined that COVID-19 constitutes a “direct threat,” such that “a significant risk of substantial harm would be posed by having someone with COVID-19, or symptoms of it, present in the workplace at the current time.”
    • Based on this interpretation, the EEOC has determined that inquiries by employers about potential COVID-19 symptoms, even if disability-related, are justified. This has enabled employers to implement broader medical inquires and procedures in the workplace than normally permitted under the ADA, including temperature checks, health questionnaires, and other screening measures.
    • The EEOC has also determined that asking or requiring an employee to show proof of receipt of the COVID-19 vaccine is not a disability-related inquiry.
  • Title VII:
    • If an employee’s sincerely held religious belief prevents the employee from receiving the COVID-19 vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship to the employer.
    • Employers should generally assume that an employee’s request for a religious accommodation is based on a sincerely held religious belief, unless the employer has an objective reason for questioning that belief, which would justify asking the employee for further information.

In new guidance issued on December 16, 2020, the EEOC clarified that if an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, and there is no reasonable accommodation possible, then the employer may exclude the employee from the workplace under a mandatory COVID-19 vaccine policy.  However, even if the employer can physically exclude an employee from the workplace, the employer cannot automatically terminate that employee, and instead must consider whether the employee is eligible for remote work or another arrangement.

Practical Considerations

Though employers are legally entitled to implement mandatory COVID-19 vaccine policies, several practical considerations suggest that employers may be better served by voluntary COVID-19 vaccine policies:

  • Unionized workforces:
    • For employers with a unionized workforce, a mandated vaccination policy is likely a subject of bargaining, and therefore the employer will need to negotiate with the union before implementing such a policy.
  • Emergency Use Authorization (EUA):
    • The Pfizer and Moderna vaccines are only currently available under EUA, which is not equivalent to full Food and Drug Administration (FDA) approval. EUA status requires the FDA to inform recipients of the option to accept or refuse the vaccine.
    • A mandatory COVID-19 vaccination policy could be perceived as at odds with the FDA’s instruction that the vaccine is optional.
    • The vaccines could ultimately gain full approval over time, at which point employers could reconsider implementing a mandatory vaccination policy.
  • Vaccine safety:
    • Recent polls demonstrate that while public confidence in COVID-19 vaccines is rising, a large percentage of Americans would not be comfortable taking an early vaccine, and 21% report that they will likely never get the vaccine, even as more information becomes available.
    • Employers may want to avoid employee backlash based on varying vaccine risk perspectives.
  • Administrative burden and legal claims:
    • A mandatory COVID-19 vaccine policy would likely increase the number of disability and religious accommodation requests by employees. This could present an administrative burden to employers in fielding, responding to, and documenting requests for accommodations, especially as the guidance from health authorities, and the status of the vaccines, continue to evolve.
    • A mandatory vaccine policy also could expose the employer to Title VII, ADA, OSH Act whistle blower, and/or privacy claims.
  • Vaccinations on a voluntary basis:
    • A voluntary vaccination policy could encourage employee goodwill and avoid administrative, legal, and perceived political clashes.
    • Employers may want to consider if it is possible to provide the vaccine at no or minimal cost to employees, and whether vaccines can be made available on site and during business hours, to encourage voluntary vaccination.
  • If a mandatory COVID-19 vaccine policy is unavoidable, the employer should:
    • Ensure the policy includes protective provisions for those with disability, religious, and/or medical objections to the vaccine.
    • Consider limiting the mandatory policy to high-risk areas, positions, departments, and/or worksites, where other means of containing COVID-19 spread are not viable.
    • Consider making the vaccine available at no or minimal cost to employees and on site during working hours, as described above.

Additional Resources:

In addition to the guidance noted above, employers can find information and resources from the following sites:

For more information, or for assistance with other employment-related questions pertaining to the COVID-19 pandemic, please contact Amy McLaughlin (amclaughlin@dinse.com), Karen McAndrew (kmcandrew@dinse.com), Kendall Hoechst (khoechst@dinse.com), or Haley Peterson (hpeterson@dinse.com).

 

NEWS

Dinse Brief

Friends and Colleagues,

As you are no doubt already aware, the Department of Education released the final Title IX regulation on Wednesday, May 6, 2020.  The official version will be published in the Federal Register later this month, and the new regulation becomes effective on August 14, 2020.

The final rule has many important provisions and some significant changes, including:

  • Defining sexual harassment to include sexual assault, dating violence, domestic violence, and stalking, as unlawful discrimination on the basis of sex;
  • Requiring live hearings and cross-examination through a party’s advisor;
  • Requiring technological solutions to give parties the option to remain in separate rooms;
  • Imposing certain “rape shield” protections and upholding certain privileges, such as the physician-patient privilege; and
  • Permitting certain informal resolution procedures.

A group of Title IX attorneys across the country—including Dinse attorneys—are working on a free resource, available here:  https://system.suny.edu/sci/tix2020/.  It will be updated daily with additional analysis and insight in the coming days.

For more information, or for assistance with planning to implement the new regulation on your campus, please contact Kendall Hoechst, khoechst@dinse.com, or Natasha Baker, nbaker@dinse.com.

NEWS

Dinse Brief – Returning Employees To The Workplace

Governor Phil Scott continues to ease the stay-at-home restrictions and moves forward with a cautious and incremental restart of the Vermont economy.  On May 1st, he released his most recent Addendum to the State of Emergency Declaration (Executive Order 01-20).  In conjunction with the Addendum, the Vermont Agency of Commerce and Community Development (ACCD) updated its work safe guidance.  The employer-related requirements included in the Addendum and the ACCD Guidance are set forth below.

Create and Ensure Employee Completion of Required Health and Safety Training

All employees (except healthcare workers, first responders, and others already trained in infection control, personal protection/universal precautions) must complete mandated health and safety training, and employers must maintain records showing that their employees completed the required training.  The Vermont Occupational Safety and Health Agency (VOSHA), in consultation with the Vermont Department of Health, developed a program with a minimal level of health and safety training that employers may utilize as a starting point.  VOSHA’s training materials may be accessed here: https://labor.vermont.gov/vermont-occupational-safety-and-health-administration-vosha

With the exception of employers with fewer than 10 employees at any one office or site of operations, which may elect to solely implement the training provided by VOSHA training, employers will need to augment the VOSHA training materials with additional policies and procedures customized to the unique nature of the employer’s sector-specific employment environment. As stated in the Governor’s Addendum, the augmented plans should assess the need to:

  • Adopt a phased approach to reopening which provides sufficient opportunity to operate first in a low density and low contact environment before making the incremental changes needed to accommodate more moderate density activity while continuing to maintain health and safety.
  • Update physical and administrative safety systems to accommodate COVID-19 VDH/CDC/VOSHA guidelines, health monitoring, including temperature checks, cleaning and sanitizing methods and physical distancing measures.
  • Take appropriate measures to protect employees at greater risk of contact by virtue of their occupational role or setting.

Prior to reopening, all businesses that have suspended operations for 7 or more days because of the Governor’s stay-at-home order must have on file their health and safety training plan, which must be provided to VOSHA or any employee, upon request.

Ensure Compliance with Safety Requirements

Before returning employees to the workplace, employers should ensure that they can implement and comply with the following physical distancing and health and sanitation measures which are set forth in Addendum 12 to Executive Order 01-20 and the ACCD’s May 1st Update on New Work Safe Additions to the Stay Home, Stay Safe Order:

  • Employees shall not report to, or be allowed to remain at, work or job site if sick or symptomatic (with fever, cough, and/or shortness of breath).
  • Employees must observe strict social distancing of six feet while on the job. Businesses and non-profit or government entities shall ensure customers observe strict social distancing of six feet while on location, to the extent possible.
  • Limit the occupancy of designated common areas, such as break rooms and cafeterias, so that occupants maintain strict social distancing of no less than 6 feet per individual. The employer shall enforce the occupancy limit and require employees to wipe down their area after use or shall ensure cleaning of the common areas at regular intervals throughout the day.
  • Employees must wear face coverings over their nose and mouth when in the presence of others. In the case of retail cashiers, a translucent shield or “sneeze guard” is acceptable in lieu of a mask.  Businesses and non-profit and government entities may require customers or clients to wear masks.
  • Employees must have easy and frequent access to soap and water or hand sanitizer during duration of work, and handwashing or hand sanitization should be required before entering, and leaving, job sites.
  • All common spaces (when open) and equipment, including bathrooms, frequently touched surfaces and doors, tools and equipment, and vehicles must be cleaned regularly and, when possible, prior to transfer from one person to another, in accordance with CDC guidance (https://www.cdc.gov/coronavirus/2019-ncov/community/reopen-guidance.html?deliveryName=USCDC_2067-DM26911).
  • No more than two people shall occupy one vehicle when conducting work.
  • Prior to the commencement of each work shift, pre-screening and health survey shall be required to verify each employee has no symptoms of respiratory illness (fever, cough, and/or shortness of breath). At the present time non-contact thermometers are in short supply, however employers shall immediately order, and use their best efforts to obtain, thermometers in order to conduct routine temperature checks.
  • Signs must be posted at all entrances clearly indicating that no one may enter if they have symptoms of respiratory illness.
  • No congregation of employees shall be permitted on site.
  • No symptomatic or COVID-19 positive workers are allowed on site and any workers who have contact with a worker or any other person who is diagnosed with COVID-19 shall be quarantined for 14 days.
  • Indoor workspaces where more than 2 employees are working must have good air circulation.  When working inside, open doors and windows to promote air flow to the greatest extent possible and limit the number of people occupying a single indoor space.
  • All operations shall designate a health officer on-site at every shift responsible for ensuring compliance with the Governor’s Executive Order and the Addenda thereto and applicable Agency for Commerce and Community Development Guidance. This person shall have the authority to stop or modify activities to ensure work conforms with the mandatory health and safety requirements.
  • All business, non-profit and government operations must use remote work whenever possible.

The ACCD guidance includes the following additional health and safety considerations for employers:

  • Use of shared workspaces, desks, offices, etc. is discouraged to the maximum extent practicable.
  • Face-to-face staff meetings should be limited, and physical distancing must be observed.
  • Consider staggered work shifts, break times, etc. and expanding hours to reduce number of individuals working together and reduce contact with members of the public.
  • To the extent possible, provide access to hand washing and/or hand sanitizer for vendors, and customers.
  • Limit staff travel between multiple sites.
  • Ensure a safe process to receive supplies and deliveries.
  • Consider accommodations for employees at higher risk from COVID-19 infection (as currently defined by the CDC) to work remotely or have a job tasks that minimize public interaction.

As the phased restart of the Vermont economy continues, the requirements set forth above are likely to be supplemented or modified.  Employers will need to stay informed about and comply with the Governor’s directives about physical distancing and health and sanitation measures in the workplace.

In addition to the requirements/guidance noted above, there is a wealth of information and resources available to employers:

Employers should review these resources to assist them as they develop return to work plans that will best meet their needs, based on their specific industries and respective workplaces.

For more information, or for assistance with planning a return of employees to the workplace, please contact Amy McLaughlin (amclaughlin@dinse.com), Karen McAndrew (kmcandrew@dinse.com), Maggie Platzer (mplatzer@dinse.com), or Kendall Hoechst (khoechst@dinse.com).

NEWS

Dinse Brief – Charity in the Time of COVID

In these unprecedented times of national and international crisis, we become aware of critical needs in our communities. We see many individuals responding to this in performing essential jobs at hospitals and in the service sectors that are essential to our daily lives: grocery stores, home deliveries of food and meals, police and fire departments, and many more. Some are volunteers, giving not only of their time, but also risking their health to assist others.

 

For those of you who can afford charitable gifts now, there are two notable law changes that might be considered:

  • For 2020, the CARES Act has eliminated the “required minimum distribution” (RMD) rule that applies to individuals over age 70½. This rule normally requires older participants in IRAs and other retirement plans to take distributions (and pay normal income taxes) on an amount determined under the RMD rules. However, the law change for 2020 has not affected the ability of individuals over 70½ to distribute up to $100,000 out of an IRA as a tax-free “qualified charitable distribution” or “QCD.” A QCD may be made out of an IRA after the IRA owner is age 70½. It has to be distributed directly by the IRA trustee or custodian to the charity, generally a 501(c)(3) organization. If interested in such a charitable gift, contact your IRA financial institution.

 

  • The CARES Act has created the opportunity in 2020 for individuals who do not itemize their deductions to claim an “above-the-line” deduction (not to exceed $300) for cash contributions to charities.  Since most taxpayers do not itemize deductions following the Tax Cuts and Jobs Act of 2017, the “above-the-line” deduction has real value to non-itemizers, allowing  them to reduce their federal income tax liabilities.  It must be made to a qualified charity in cash in 2020 to be eligible for the deduction, and it cannot be made to a charity for the purpose of deposit into a donor advised fund.

 

If you have questions on these or other issues related to retirement plans or tax issues, contact any one of the Dinse tax and employee benefit lawyers:

Brian Murphy (bmurphy@dinse.com), Maggie Platzer (mplatzer@dinse.com)  Dan Sharpe (dsharpe@dinse.com)

NEWS

Dinse Brief – Lender Clients Memo

April 10, 2020

In these turbulent times of the Covid-19 pandemic, this memorandum is intended to summarize the issues and complications that we expect to encounter in connection with closings, especially those that involve real estate.  Closings will continue to happen; however, they may be delayed.  Our real estate team at Dinse P.C. is making the necessary adjustments and preparations to keep transactions on track.  However, deal-specific factors (e.g., the town in which the property is located) may impact the timing of closings.  Please note that this is a dynamic situation and we may need to revise this memorandum as circumstances change.  We hope that this summary of the primary closing issues is helpful to you as you prepare your teams and customers for closings.  Please don’t hesitate to contact me with any questions or concerns.

 

Title Searches

 

The most likely source of a closing delay will be a town/city clerk’s decision to close its office, even to title searchers (e.g., Bennington).  For those towns that do not maintain online land records, many will still allow limited title searches by appointment (e.g., Charlotte), while others will not permit any access, but will provide information and documents from the land records upon request (e.g., South Burlington).  The property location and the title insurance underwriter (see below) will determine whether a closing will be delayed due to an incomplete or out-of-date title search.  We recommend that the title attorney call the town clerk or visit the town’s website early in the planning process to obtain the most current protocol for title searches.  We also recommend that the title attorney continue to stay in touch or monitor the town clerk’s office as their availability may change as this situation continues to change.

 

Title Insurance

 

We have been tracking communications from three Vermont title insurance companies, for which our firm is an agent, with frequent changes in underwriting requirements and coverages that are available to lenders and buyers to assist with completing closings.  For instance, depending on when a title search is completed, and whether the town clerk is open, Gap Coverage is very likely being offered by any of the title insurance companies doing business in Vermont.  Additional documentation, underwriting and closing requirements apply.  Therefore, making the title insurance arrangements will require more time and preparation than normal and we recommend that you communicate with the title attorney early in the transaction to ensure that the required coverages will be available at closing.

 

Appraisals

 

We have heard that residential appraisers are refraining from visiting occupied homes at this time and are, instead, conducting “desk appraisals” whenever feasible (e.g., a refinance with the same lender).  We are not aware of the position that commercial appraisers are taking at this time and whether appraisals are being conducted, and if so, under what conditions.  If your transaction requires an appraisal, you should contact your appraiser early to discuss protocols as this could impact the timing of the closing.

 

Remote Closings

 

Closings should only occur remotely to discourage even small gatherings of people.  Documents should be circulated electronically, as feasible, for execution a few days prior to closing.  Original executed documents should then be delivered to the lender/settlement agent before closing and held in escrow pending completion of the closing.  Closing funds should be wired to borrowers, settlement agents, and sellers to avoid the delays of distributing checks.  Remote closings require additional time to arrange, especially the logistics of signing, notarizing and exchanging documents, so please begin those conversations early.

 

Signing Logistics

 

As was the case before Covid-19, loan documents may be signed, scanned and circulated electronically for closing, subject to your individual lender requirements.  However, the “wet-ink” originals of certain critically-important documents (e.g., promissory notes and mortgages) must be delivered to the lender/settlement agent by closing (in escrow, as noted above).  Documents requiring a notary (e.g., mortgages) may be executed using Remote Online Notarizations (outlined below).

 

Remote Online Notarizations

 

The Secretary of State has passed emergency rules for the remote notarization of documents via online video conferences.  To assist notaries public, it also issued a detailed Guidance document that describes the process (Remote Notarization – Emergency Rules).  Please note that electronic notarizations, and the notarization of electronic signatures, are not permitted; the rules allow for “wet ink” signatures and notarizations only.  In addition, these rules do not govern documents that are signed and/or notarized outside of Vermont.  The rules of that state will apply.  For documents remotely signed and notarized outside of Vermont, be aware that at least one title insurance company (and others will likely follow) is currently requiring that an attorney in the state in which the signing/notarization occurred provide a brief opinion stating that the document was properly executed.  This will likely require additional time and expense.

 

In addition, the state legislature is currently working to amend the statute (POA Statute) to allow a Power of Attorney to be witnessed remotely.  Currently, a witness must be in the same physical location as the signer of a Power of Attorney.  Once passed, the amended statute will allow the flexibility of a remotely-signed, witnessed and notarized Power of Attorney that authorizes another person to execute closing documents locally.  This will help to avoid the tedious process of signing and notarizing several documents, which may each contain several pages, via online video conferencing.

NEWS

Dinse Brief: U.S. Department of Labor Issues Temporary Rule on New Paid Leave Laws

The U.S. Department of Labor (DOL) issued temporary regulations implementing the Emergency Family and Medical Leave Expansion Act (“FMLA Expansion”) and the Emergency Paid Sick Leave Act (“EPSL”), both of which provide paid leave benefits to certain employees. These regulations are largely consistent with the DOL’s prior guidance on these new benefits (see earlier Dinse Briefs for a summary of the paid leave law requirements, as well as a summary of prior DOL guidance on these requirements), but there are some notable points of which employers should be aware.

Key Points

  • A shelter-in-place or stay-at-home order issued by a Federal, State or local government authority that causes the employee to be unable to work does qualify an employee for paid leave, but only if the employee’s employer has work the employee could otherwise perform. Stated another way, an employee subject to a stay-at-home order may not take EPSL leave where the employer does not have work for the employee either as a result of the same stay-at-home order or for other reasons.

 

  • An employee is eligible for the paid leave benefit of the FMLA Expansion if the employee has been employed by the employer for at least 30 calendar days. The regulations clarify that employees, who are laid off or otherwise terminated on or after March 1, 2020 and who had worked for the employer for at least 30 calendar days of the prior 60 calendar days, are eligible for FMLA Expansion leave, if they are subsequently rehired or otherwise reemployed by the same employer.

 

  • An employee may qualify for EPSL paid leave if they are caring for an “individual” who is subject to an isolation or quarantine order, or has been advised by a health care provider to self-quarantine due to COVID-19 concerns. An “individual” is defined by the regulations as an employee’s immediate family member, a person who regularly resides in the employee’s house, or a similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person if s/he were quarantined or self-quarantined.  An individual does not include persons with whom the employee has no personal relationship.

 

  • The taking of EPSL or FMLA Expansion leave shall not impact on employee’s status as an exempt employee under the FLSA.

 

  • Advance notice of the need to take EPSL or FMLA Expansion may not be required by the employer, but after the first workday when an employee takes such leave, the employer may require the employee to follow a reasonable notice procedure. An employee’s notice may be oral, but it must contain enough information for an employer to determine that the requested leave is covered by the federal paid leave laws.  If the employee fails to provide the proper notice, the employer should inform the employee of the failure and provide the employee with an opportunity to comply with the procedure prior to denying the request for leave.

 

  • The regulations clarify what documentation an employer may ask employees to provide to support their request for EPSL or FMLA Extension leave. Specifically, an employer may ask an employee to provide the following information:

 

  • employee’s name;
  • date(s) for which leave is requested;
  • the qualifying reason for the leave;
  • a statement that the employee is unable to work because of the qualifying reason for the leave;
  • the name of the government entity that issued the quarantine or isolation order, if applicable;
  • the name of the health care provider who advised the employee to self-quarantine due to concerns related to COVID-19, if applicable;
  • the name of the government entity that issued the quarantine or isolation order to which the individual being care for is subject, if applicable;
  • the name of the health care provider who advised the individual being cared for to self-quarantine due to concerns related to COVID-19, if applicable; and
  • for leave necessitated by a school closing or child care provider’s unavailability: (i) the name of the son or daughter being cared for, (ii) the name of the school, place of care, or child care provider that has closed or become unavailable, and (iii) a representation that no other suitable person will be caring for the child during the period of EPSL or FMLA Expansion paid leave.

 

  • The regulations state that an employer is required to retain all paid leave related documentation for four years, regardless of whether the leave was granted or denied. If an employee provides an oral statement to support his or her request for EPSL or FMLA Expansion, the employer is required to document and maintain such information. An employer that denies an employee’s request for EPSL or FMLA Expansion must document its determination as to why the denial was appropriate.  In order to claim tax credits from the Internal Revenue Service (IRS) for the paid leave provided to employees, the regulations direct an employer to retain the following records for four years:

 

  • Documentation to show how the employer determined the amount of paid sick leave and expanded family and medical leave paid to employees that are eligible for the credit, including records of work, telework, EPSL and FMLA Expansion;
  • Documentation to show how the employer determined the amount of qualified health plan expenses that the employer allocated to wages;
  • Copies of any completed IRS Forms 7200 that the employer submitted to the IRS;
  • Copies of the completed IRS Forms 941 that the employer submitted to the IRS or, for employers that use third party payers to meet their employment tax obligations, records of information provided to the third party payer regarding the employer’s entitlement to the credit claimed on IRS Form 941, and
  • Other documents needed to support its request for tax credits pursuant to IRS applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit.

More detailed information is available from the IRS at the following link: https://www.irs.gov/newsroom/covid-19-related-tax-credits-for-required-paid-leave-provided-by-small-and-midsize-businesses-faqs

  • The usual FMLA employer notice requirements, such as notice of eligibility and rights and responsibilities, as well as the designation notice, are not required for FMLA Expansion leave.

 

  • While the FMLA Expansion adds another reason for which an employee may take FMLA leave, it does not add 12 more weeks of FMLA leave entitlement.

Employers are encouraged to review the regulations themselves, which can be found at the following link: https://s3.amazonaws.com/public-inspection.federalregister.gov/2020-07237.pdf

For more information, or for assistance with other employment-related questions pertaining to the COVID-19 pandemic, please contact Amy McLaughlin (amclaughlin@dinse.com), Karen McAndrew (kmcandrew@dinse.com), Maggie Platzer (mplatzer@dinse.com), or Kendall Hoechst (khoechst@dinse.com).