Winstead PC Shareholder Taylor White published the second article for his column in Texas Lawyer about labor and employment issues and trending topics. The article is titled “OSHA Emphasizes Enforcement Effort for COVID-19 Hazards in Certain Industries.” The article is below:

Throughout the pandemic, the Occupational Safety and Health Administration (OSHA) has faced criticism that it was not doing enough to protect America’s workers from COVID-19 hazards. Then, on Feb. 25, the U.S. Office of the Inspector General, the watchdog for the U.S. Department of Labor, issued a report, observing that “there is an increased risk that OSHA is not providing the level of protection that workers need at various job sites.” OSHA is focused on changing that perception in the coming months.

Continue Reading Taylor White in Texas Lawyer: OSHA Emphasizes Enforcement Effort for COVID-19 Hazards in Certain Industries

Winstead PC Shareholder Taylor White published the first article for his column in Texas Lawyer about labor and employment issues and trending topics. The article is titled “Best Practices and Considerations for Employers Regarding the COVID-19 Vaccine in the Workplace.” The article is below:

“With states individually rolling out the COVID-19 vaccine to residents, employers are, and should be, beginning to consider their options with respect to employee vaccinations. The Centers for Disease Control and Prevention (CDC) has previously recommended giving the COVID-19 vaccine in phases initially, as it relates to employees: (1) health care employees; then, (2) frontline essential employees, such as education workers, manufacturing workers, first responders, and food and agricultural workers; and then, (3) other essential workers, such as construction workers, finance workers, and transportation and logistics workers. Of course, ‘the goal is for everyone to be able to easily get a COVID-19 vaccine as soon as large quantities are available.’

Continue Reading Taylor White in Texas Lawyer: Best Practices and Considerations for Employers Regarding the COVID-19 Vaccine in the Workplace

Taylor White recently presented for Winstead’s  ‘Healthcare Employer Roundtable – Best Practices and Considerations for Employers Regarding the COVID-19 Vaccine in the Workplace’ virtual event. During the presentation, Taylor discussed how employers in the healthcare space are faced with a unique set of challenges Continue Reading Presentation: Best Practices and Considerations for Employers Regarding the COVID-19 Vaccine in the Workplace

On Friday, February 26, 2021, the Department of Labor (“DOL”) issued EBSA Disaster Relief Notice 2021-01 (the “2021 Notice”) to address expiring relief provisions previously provided in the DOL’s Disaster Relief Notice 2020-01 (“Notice 2020-01”) and the Notice of Extension of Certain Timeframes for Employee Benefit Plans, Participants, and Beneficiaries Affected by the COVID–19 Outbreak (“Joint Notice”) (along with Notice 2020-01, the “2020 Notices”) issued by the DOL, the Department of the Treasury, and the Internal Revenue Service (IRS) (collectively “Agencies”).  This highly anticipated guidance provides a somewhat more expansive interpretation of the relief period prescribed under the 2020 Notices.

Continue Reading Oh, What a Relief it Is! DOL Provides Guidance on COVID-19 Relief Periods

No one denies that employers confronted a plethora of challenges in 2020, and many had to make difficult decisions to reduce their workforces due to the pandemic.  Such reductions in force can implicate a number of business considerations and labor laws, but for employers that sponsor qualified retirement plans, these employment decisions can inadvertently implicate the partial plan termination rules under the Internal Revenue Code.  In the event of a partial plan termination, affected participants (which under current guidance includes those who have voluntarily terminated employment) must become immediately 100% vested in their benefits under the retirement plan.

The determination of whether a partial plan termination has occurred is based on the surrounding facts and circumstances.  However, under guidance previously issued by the Internal Revenue Service, there is a rebuttable presumption that a partial plan termination has occurred if the percentage of participants decreased by at least 20%.  When determining whether that threshold percentage has been met, only employer-initiated severances, such as reductions in force and plant closures, are taken into account.

This determination is generally made with respect to each plan year (i.e. as of December 31st for a plan on a calendar year).  However, the applicable measurement period may be extended beyond the initial plan year where the same event that resulted in the decrease in participation in the initial plan year continues to exist in the subsequent period.

Continue Reading Relief for Partial Plan Terminations May Be “Too Little, Too Early”

Under the Consolidated Appropriations Act, 2021 (H.R. 133)(the “Act”) (here), which was signed into law on December 27, 2020, new relief is available for employees who participate in health care flexible spending accounts and dependent care flexible spending accounts (“FSAs”).   While the Internal Revenue Service (“IRS”) issued limited relief for FSA participants in 2020 (here), that guidance only expanded opportunities to make mid-year elections.  It did not address the desire of so many employees to extend access to their unspent FSA balances beyond the 2020 plan year.

The changes under the Act are intended specifically to address this concern.  Importantly, the changes are optional.  Employers who implement these changes will likely experience higher costs due to reduced forfeitures and changes in plan administration.  Additionally, changes to health FSAa could adversely affect the participant’s eligibility to contribute (or receive contributions) to a health savings account.  Below is a summary of the changes affecting FSAs:

Continue Reading Flexibility for Flex Accounts – Congress Provides New Relief to Employees

With political division in the United States on full display in the midst of a pandemic, Americans are faced with deepening rifts that touch not only their social circles and family units, but also their work lives. It therefore behooves employers to recognize the reality that disagreements about politics are likely to arise in one form or another in the workplace. With that in mind, employers should review their employment policies and related practices to ensure they are ready to address workplace disputes centered on politics, especially in light of the telecommuting arrangements that many employers are still utilizing during the pandemic.

Continue Reading It’s Time for Employers to Revisit Their Employment Policies to Be Ready to Address Political Disputes Among Coworkers

On December 11, 2020, the United States Department of Labor (DOL) issued a pre-publication version of its final regulations with respect to proxy voting in plans that are subject to the Employee Retirement Income Security Act of 1974 (ERISA).  The purpose of the rule is to clarify the DOL’s longstanding position regarding fiduciary responsibilities to vote proxies, to coordinate with recent changes implemented by the United States Securities and Exchange Commission (SEC) for investment advisers, and to dovetail on recent changes in DOL guidance regarding ERISA plan investments that promote environmental, social, and governance (ESG) principles.  These final regulations generally apply following the expiration of the 30-day period following publication in the Federal Register (although certain provisions are not effective until January 31, 2022 for plan fiduciaries other than investment advisers).

Continue Reading Plan Fiduciaries: You Have No Right to Vote

The United States Court of Appeals for the Fifth Circuit recently reminded employers that they should create and maintain contemporaneous documentation for their personnel decisions and implement flexible progressive discipline policies. Specifically, on December 7, 2020, the Fifth Circuit affirmed a district court’s grant of summary judgment in an employer’s favor on an employee’s age discrimination claim. It did so, in part, because the employer showed that a merit raise it gave the former employee pre-dated the documented decline in her performance and that its progressive discipline policy allowed it discretion in implementation of the progressive steps.

Continue Reading Fifth Circuit Reminds Employers of the Importance of Contemporaneous Documentation and Flexible Progressive Discipline Policies

Winstead’s Labor & Employment and Executive Benefits attorneys conduct client-tailored training programs for executives and managers on workplace discrimination, harassment, retaliation, regulatory compliance, restrictive covenant and trade secrets enforcement and defense, executive compensation, and benefit structures.  Our attorneys frequently speak on complex workforce issues before local and national trade associations.

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