EMPLOYMENT LAW CONSIDERATIONS

FFCRA DOL Healthcare Update

Healthcare Employers Spared Burden of FFCRA By Last Minute DOL Guidance Last updated 3.30.2020 The Families First Coronavirus Response Act created a bizarre contradiction for healthcare employers. While hospitals, clinics and other patient care providers worked under great strain to care for patients, with COVID-19 and other maladies, the Act would have permitted employees of health care providers to be absent from work, sometimes with pay, in some situations for up to 12 weeks. Saturday afternoon, the DOL issued new guidance to greatly expand the scope of employees that healthcare providers can exclude from the leave rights under FFCRA, sparing providers from crippling staff shortages during this pandemic. FFCRA permitted employers to elect to exclude health care providers and emergency responders from the leave rights created by the act. However, the act did not define emergency responder, and borrowed the FMLA’s narrow definition of health care provider. As the act was written, health care employers could exclude only doctors, nurse practitioners and physicians’ assistants, along with a handful of other licensed professionals, from the leave rights under the act. Notably, RNs, LPNs and CNAs were not on the list of employees that could be excluded, nor were pharmacists, pharmacy techs, any type of therapists, or any of the support staff necessary to operate a hospital, nursing home or medical practice. DOL’s Q&A greatly expanded the definitions of health care provider and emergency responder to permit employers to exclude a broad cross-section of employees from the leave rights: “a health care provider is anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity. An emergency responder is now defined as: “. . . an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility.” These definitions appear sufficiently broad to allow a health care employer to exclude any employee from the leave rights under FFCRA. Along with these expanded definitions, the DOL encourages employers of healthcare providers and emergency responders to be “judicious” when excluding employees from the leave rights under the Act because of the overarching need to minimize the spread of the virus. The new Q&A guidance did not inform employers how to elect to exclude categories of employees. We suggest that you notify employees individually via email or memo if you intend to exclude them from exercising FFCRA leave rights, and the sooner the better in advance of the April 1 effective date. However, a general communication that identifies categories of employees who are excluded should satisfy the act’s requirements for larger employers. Keep in mind, if you have 50 or more employees, or if your entity is a public agency, you are covered by the Family and Medical Leave Act, regardless of the FFCRA. As a result, some of your employees may be eligible for leave for their own serious health condition or to care for a family member with a serious health condition, even if you exclude them from the FFCRA. BRAD CAVE T. 307.778.4210 Send Email

Families First Coronavirus Response Act - Sick Leave

Last updated 3.20.2020 New Federal Legislation Requires Employers to Provide Emergency Paid Sick Leave ​ The Emergency Paid Sick Leave Act ("EPSLA"), passed by Congress on March 18, 2020, requires private employers with five hundred (500) or fewer employees, and public agencies with at least one employee, to provide up to eighty (80) hours of paid emergency sick leave for certain qualifying coronavirus-related reasons. Covered employers must give emergency paid sick time to any employee, regardless of the length of employment, for a qualifying emergency related to the coronavirus. The EPSLA takes effect on April 2, 2020 and remains in effect until December 31, 2020. Emergency sick leave may be used by employees starting April 2, 2020 and running through the first pay period following the formal declaration of the end of the current coronavirus emergency. Coverage The EPSLA applies to private employers with five hundred (500) or fewer employees and public agencies with at least one employee. Eligible Employees Paid sick time is available for immediate use regardless of how long the employee has been employed. It applies to full time and part time employees, regardless of the employee’s FLSA exemption status. Qualifying Reasons for Paid Sick Leave An employee may only take paid sick time if the employee is unable to work or telework due to a need for leave because one of the following situations has occurred:

1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.
2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
4. The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2).
5. The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the childcare provider of such son or daughter is unavailable, due to COVID-19 precautions.
6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Amount of Leave Available Full-time employees are entitled to 80 hours of emergency paid sick leave and part-time employees are entitled to a proportionately similar amount, based on the average number of hours they work in a two-week period. Sick leave provided under the EPSLA does not carry over from one year to the next and is not paid out upon the termination of an employee’s employment. Calculating Rate of Pay If the employee is taking leave for their own care (reasons 1, 2, and 3 above), then the paid sick time is compensated at the employee’s regular rate (but not less than the applicable federal, state, or local minimum wage) capped at $511 per day (which would apply to someone making more than $130,000 per year) or $5,110 in the aggregate. If the employee is taking leave to care for someone else or for a related condition specified by the Secretary of Health and Human Services (reasons 4, 5, and 6 above), then the paid sick time is compensated at two-thirds their regular rate capped at $200 per day or $2,000 in the aggregate. Regular rate is determined using the FLSA definition. Impact on Other Paid Leave The employee must be allowed to use paid sick time under the Act before using any other accrued paid time off. Emergency paid sick time is used in addition to any paid leave entitlement(s) already existing under an employer’s policies. The EPSLA does not interfere with benefits already provided under Federal Law, State Law, Local Law, Employer Policies, or an existing Collective Bargaining Agreement, it is simply a benefit provided in addition to existing benefits. Employers may not change their paid leave policies on or after the date of the Act’s enactment to avoid providing the additional two weeks of emergency paid sick time. A link to new legislation can be found here. 3.26.20 COVID-19 Employment Law Update Recording and Slides EMILY HOBBS T. 303.295.8584 Send Email JORDAN WALSH T. 775.327.3040 Send Email

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Families First Coronavirus Response Act - Tax Credits

Last updated 4.7.2020 Employers required to provide paid emergency sick leave or paid extended family medical leave under the Families First Coronavirus Response Act are eligible for a refundable tax credit equal to 100 percent of qualified leave wages paid by the employer during the period from April 1, 2020 to December 31, 2020 for qualifying leave taken by employees during that same period. The amount of the tax credit is increased by the employer’s share of Medicare taxes on qualifying leave and the cost of providing group health plan benefits allocable to the employees receiving qualifying leave. While the original language of the FFCRA provided that the credit could be obtained by offsetting the employer’s portion of Social Security taxes owed for a quarter, the IRS has now issued guidance stating that the credit can be obtained by accessing all federal payroll taxes of the business for the relevant pay period as explained in more detail below. If the available credit for providing the required leave payments exceeds the amount of such payroll taxes, the employer may request a refund for the excess amount of the credit for the quarter. An employer with qualified leave wages may elect not to have the credit apply and may instead claim a deduction for the leave wages paid. Source of Funds - Details To mitigate cash flow concerns, the IRS announced guidance on March 31, 2020 that allows employers to recover a significant portion of the cost of paid leave simultaneously with paying the leave in that payroll period. IRS guidance now allows:

• Employers to retain (and not deposit) all federal payroll tax deductions for the payroll period: the federal income tax withheld from all employee wages, employer Social Security and Medicare taxes, and employee Social Security and Medicare withheld from all employee wages.
• If the amount of such payroll taxes is not sufficient to cover the cost of the qualifying leave paid for the period, employers may file a Form 7200 and request a refund of remaining tax credit from the IRS.
• Employers may file several Forms 7200 during a quarter to claim an advance payment of the tax credit the employer will claim on the Form 941 for that quarter. Refunds should be issued within 2 weeks of filing the Form 7200.

Considerations To better assist employers substantiate the ability to claim a tax credit, provided below is a summary of the recordkeeping requirements associated with claiming tax credits:

• Employers must satisfy significant recordkeeping requirements in order to substantiate the tax credits claimed for paying qualifying leave. Employers should retain these records for at least 4 years. These records include how the employer determined whether employees were entitled to qualifying leave, calculated the credit, and determined allocable health costs. Employers should retain copies of any Forms 7200 filed with the IRS and the Forms 941 upon which credits were claimed.
• Employers claiming a tax credit must obtain a statement from the employee substantiating that the leave request constitutes qualifying leave. This statement should include the employee’s name, the applicable dates of the requested leave, the COVID-19 related reason the employee is requesting leave with written support for such reason, and a statement that the employee is unable to work, including by means of telework, for such reason.
  • If employees are requesting leave due to a quarantine, the employee must provide the agency or person requiring such quarantine.
  • If the employee is requesting leave due to a school closure, the employee must provide the name and age of the student, the name of the closed school, and a description of the circumstances that require the employee to take care of the student.

BRET BUSACKER T. 208.383.3922 Send Email KAREN DEAN T. 303.295.8550 Send Email ARTHUR HUNDHAUSEN T. 303.295.8548 Send Email

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Work From Home

Last updated 3.15.2020 As required and self-imposed quarantine issues arise, as well as government directions to limit gatherings and shut down schools continue, employers are considering (or are being forced to consider) allowing or requiring portions of their workforce to work from home. Employers have significant discretion to structure these programs, from deciding which employees may be eligible, setting expectations related to work productivity, establishing different or revised work schedules, and maintaining system security. No policy is a one-size-fits-all, but below are highlights of the issues employers should consider and implement: Eligibility Considerations

• Employers should consider what types of work positions are conducive to working remotely, considering job duties, access to systems or files, and ability to complete tasks by email or telephone.

• Generally, only employees in good standing based on prior performance, attendance records, and ability to work without significant direct supervision are good candidates. Employees working remotely should be trustworthy and self-starters.

• Employers can set a minimum tenure requirement, such as working for the employer for 90-days, in order to be eligible to work from home (otherwise, the employees who do not meet such a tenure requirement may be subject to other types of leaves or reductions in force).

• Employees who do not maintain sufficient performance or comply with the work from home policy or requirements, may not remain eligible to work from home.

• All eligibility decisions are made at the full discretion of the employer.

Home-based Working Conditions

• Be clear that employees are expected to maintain the work performance requirements listed in their job descriptions or as outlined by their manager.

• Set expectations (even if temporarily lowered to account for a shorter workday, lower production level, or the reality that if schools are shut down, there will be other distractions for the employee).

• Be clear that employees are expected to dedicate a quiet, secluded, and disturbance free home-work “office” to the extent possible. Distractions from children, animals, or other disturbances should be minimized during the work from home-work schedule.

IT and Security Concerns

• Employers should consider whether they will provide all necessary equipment; if they do, then employers can ensure that all required security, firewall, and other IT considerations are in place. A process for returning equipment when employment ends should be defined.

• Consider whether employees will be required to have high-speed Internet or a dedicated land-line (if requiring a land-line on an emergency basis such as a COVID-19 shutdown, it may not be a realistic requirement depending on the relevant phone company’s availability).

• If employees are allowed to use their own equipment and computer, the employer should set out specifically the data security requirements and programs that the employee must utilize, download, etc.

• Determine what company systems the employees can and should be allowed access to while working remotely.

• Implement increased security measures, if possible, to lock down the most mission-critical employer data from being accessed by any unauthorized individuals remotely.

BRYAN BENARD T. 801.799.5833 Send Email

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Pay Practices

Pay Issues During COVID-19 Last updated 3.16.2020 What's the Problem? How should employers pay employees who have been sent home involuntarily – either because they display illness symptoms or as a preventative measure (e.g., quarantine after returning from travel to high-risk area). What to Consider Pay practices differ based on the specific issue and the employee’s exempt or non-exempt status. Can I send a non-exempt employee home without pay? As a general rule, non-exempt employees must be paid for all time actually worked, but need not be paid for time when they perform no work. If an employer sends a non-exempt employee home, the employer should make sure the employee is paid for all work performed while at home. If the employee is sent home because the employee displays signs of illness, the employer would generally be able to mandate that the employee use available paid sick time (subject to certain state law requirements). Employees should be allowed to use other available paid time off in accordance with the employer’s paid time off policies. A trickier question arises when an employer sends a non-exempt employee home when the employee does not display illness symptoms (e.g., in cases of potential exposure). In those cases, the EEOC may take the position that the employer is perceiving the employee as disabled and, if the employee is sent home without pay, an argument could be made that the employee has suffered damages as a result of perceived disability by the employer. There are counter-arguments, but employers should evaluate each case individually and seek counsel. Employers should bear in mind that some states have specific requirements about use of sick leave, which may vary from the above. Can I send an exempt employee home without pay? Exempt employees are typically entitled to payment of their full salary for any week in which they perform work, without deductions made for absences occasioned by the employer or the operating demands of the business. Certain exceptions from that general rule apply in circumstances delineated in the United States Department of Labor’s (USDOL) regulations. These exceptions include deductions in full-day increments for absences due to personal reasons, other than sickness or disability, and deductions in full-day increments for absences caused by sickness or disability if the deduction is made in accordance with a bona fide plan, policy, or practice providing compensation for loss of compensation caused by such sickness or disability, etc. Other exceptions apply. You can reference the USDOL Q&A on COVID-19 issues here. The USDOL just released the following guidance: The FLSA does not require employer-provided vacation time. Where an employer offers a bona fide benefits plan or vacation time to its employees, there is no prohibition on an employer requiring that such accrued leave or vacation time be taken on a specific day(s). This will not affect the employee’s salary basis of payment so long as the employee still receives in payment an amount equal to the employee’s guaranteed salary. An employee will not be considered paid “on a salary basis” if deductions from the predetermined compensation are made for absences occasioned by the office closure during a week in which the employee performs any work. Exempt salaried employees are not required to be paid their salary in weeks in which they perform no work. So, a private employer may direct exempt staff to take vacation or debit their leave bank account in the case of an office closure, whether for a full or partial day, provided the employees receive in payment an amount equal to their guaranteed salary. In the same scenario, an exempt employee who has no accrued benefits in the leave bank account, or has limited accrued leave and the reduction would result in a negative balance in the leave bank account, still must receive the employee’s guaranteed salary for any absence(s) occasioned by the office closure in order to remain exempt. For more information, see WHD Opinion Letter FLSA2005-41. Note of Caution: If an employer sends exempt employees home after the workweek has begun, and these employees have no paid time off available, this may be deemed an “absence occasioned by the demands of the business,” which would entitle the employee to payment for the full workweek. You should seek legal counsel if you encounter such circumstances. Do I have to pay employees if business shuts down because of a government mandate? As mentioned above, non-exempt employees are generally not entitled to be paid for periods of time during which they perform no work – even if the reason why the non-exempt employee is not working is a government-mandated shutdown. For exempt employees, the FLSA does not permit employers to make deductions from employees’ pay for partial or even full-day closures of less than an entire workweek, regardless of whether they are caused by the government. The only exception is when the employer’s facility is shut down for an entire workweek, and exempt employees do not perform any work at all during the shutdown. Employers should, however, assess how realistic it is that exempt employees performing no work at all for an entire workweek (e.g., checking e-mails or making phone calls). Do I have to pay employees their same hourly rate or salary if they work at home? According to USDOL, if telework is being provided as a reasonable accommodation for a qualified individual with a disability, or if required by a union or employment contract, then you must pay the same hourly rate or salary. If this is not the case, and you do not have a union contract or other employment contracts, under the FLSA employers generally have to pay employees only for the hours they actually work, whether at home or at the employer's office. The FLSA requires employers to pay non-exempt workers at least the minimum wage for all hours worked, and at least time and one half the regular rate of pay for hours worked in excess of 40 in a workweek. Salaried exempt employees generally must receive their full salary in any week in which they perform any work, subject to certain very limited exceptions. If the Service Contract Act (SCA) or state or local laws regulating the payment of wages also apply, nothing in the FLSA or its regulations or interpretations overrides or nullifies any higher standards provided by such other laws or authority. (See the U.S. Department of Labor, Wage and Hour Division for additional information on the SCA or call 1-866-487-9243.) What other pay-related issues should Employers consider? Although the FLSA does not require this, employers should consider any potentially-applicable state law requirements regarding reporting pay or predictive scheduling. DORA LANE T. 775.327.3045 Send Email Small Business Coverage Under the Paid Leave Provisions of the FFCRA Last updated 4.17.2020 As covered elsewhere in this site, under the FFCRA, all private employers that employ fewer than 500 employees must comply with the emergency paid sick leave (EPSLA) and paid family leave (EFMLEA) provisions of the coronavirus relief legislation. The statute does not distinguish between for-profit and non-profit entities; employers of both types must comply with the FFCRA if they otherwise meet the requirements for coverage. While small businesses typically have fewer than 500 employees, they may be exempted from these requirements due to US Department of Labor regulations promulgated at the beginning of April. Specifically, the DOL regulations clarify when small businesses that are affiliated with larger entities may be treated as a single employer for purposes of counting the 500 employee coverage threshold and when certain small businesses with less than 50 employees otherwise may be exempted from the paid leave requirements under the statute. As a general matter, all full-time and part-time employees in the United States (including all of its territories) are counted towards the 500 employee coverage threshold, regardless of whether the employees are currently on leave, supplied by a temporary placement agency, or are day laborers. It is clear that a corporation with multiple establishments or divisions is considered to be one employer and all of its employees count towards the 500 employee coverage marker. The trickier question is what happens when a corporation has an ownership interest in another corporation, such as a when a larger corporation has an ownership stake in a small business. In this circumstance, each corporation is considered a separate employer unless the two corporations (1) qualify as joint employers under the Fair Labor Standards Act (FLSA), or (2) satisfy the integrated employer test under the Family Medical Leave Act (FMLA). Joint Employer Rule Under FLSA The DOL’s new FLSA joint employer rule took effect on March 16, 2020. While the test is flexible, it typically looks at whether two (or more) entities share the power to: (1) hire or fire employees; (2) supervise and control employee’s work schedules or conditions of employment; (3) determine the employees’ rate and method of payment; and (4) maintain the employees’ employment records. If two separate entities are found to be joint employers, all of their common employees count towards the 500 employee threshold under the EPSLA and and EFMLEA. FMLA Integrated Enterprise Test The DOL’s integrated enterprise test under the FMLA considers the extent to which two (or more) entities have: (1) common management; (2) interrelation between operations; (3) centralized control of labor relations; and (4) the degree of common ownership/financial control. If the test is satisfied, then the multiple entities will be considered an “integrated employer” under the FMLA and all of their employees together will count towards the 500 employee threshold. The Small Business Exemption The FFCRA provides an exemption for employers with fewer than 50 employees from providing paid sick and family/medical leave. To qualify, the small business employer must keep a written record showing that:

1. the paid leave would cause the employer’s expenses and financial obligations to exceed available revenues and cause the business to cease operating at a minimal capacity; or
2. the absence of the employees requesting leave would pose a substantial risk to the financial health or operational capacity of the business because of the employees’ skills, knowledge, or responsibilities; or
3. the small business cannot find enough other workers to perform the work of the employees requesting leave and this work is necessary to keep the business operating at minimal capacity.

For reasons (1), (2), and (3), the employer may deny paid sick leave or expanded family and medical leave to otherwise eligible employees. The business need only keep a written record in its own files of its denial of leave and its qualifying reasons; it need not submit anything in writing to the Department of Labor. In exercising its authority to exempt certain employers with fewer than 50 employees, the Department stated that it was trying to balance two potentially competing objectives of the FFCRA. “On the one hand, the leave afforded by the FFCRA was designed to be widely available to employees to assist them navigating the social and economic impacts of COVID-19 as well as public and private efforts to contain and slow the spread of the virus. On the other hand, the Department recognizes that FFCRA leave entitlements have little value if they cause an employer to go out of business and, in so doing, deny employees not only leave but also jobs.” JEREMY MERKELSON T. 303.295.8000 Send Email

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Anti-Discrimination

Last updated 3.15.2020 ADA AND THE REHABILITATION ACT The ADA and the Rehabilitation Act, including the requirement for reasonable accommodation and rules about medical inquiries and examinations, continue to apply. Employers continue to have a duty to prevent stigma and discrimination in the workplace. However, these laws do not prevent or interfere with employers' ability to take steps to prevent workplace exposure to COVID-19. Direct Threat The ADA prohibits an employer from making disability-related inquiries and requiring medical examinations of employees, except under limited circumstances. During a pandemic, however, if an individual with a disability poses a direct threat despite reasonable accommodation, he or she is not protected by the nondiscrimination provisions of the ADA. A “direct threat” is “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” Assessments of whether an employee poses a direct threat in the workplace must be based on objective, factual information, “not on subjective perceptions . . . [or] irrational fears” about a specific disability or disabilities. The EEOC’s regulations identify four factors to consider when determining whether an employee poses a direct threat: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that potential harm will occur; and (4) the imminence of the potential harm. Whether COVID-19 rises to the level of a direct threat depends on the severity of the illness. An assessment by the CDC or state or local health authorities that COVID-19 is significantly more severe than, for example, seasonal influenza, could mean it poses a direct threat. The assessment by the CDC or public health authorities provides the objective evidence needed for a disability-related inquiry or medical examination. Frequently Asked Questions (Also see EEOC’s Pandemic Preparedness in the workplace and the ADA) May an employer send employees home if they have influenza-like symptoms during a pandemic? Yes. Employees who become ill with symptoms of influenza-like illness at work during a pandemic should leave the workplace. Advising such workers to go home is not a disability-related action if the illness is akin to seasonal influenza. Additionally, the action would be permitted under the ADA if the illness were serious enough to pose a direct threat. During a pandemic, how much information may an ADA-covered employer request from employees who report feeling ill at work or who call in sick? Employers may ask such employees if they are experiencing influenza-like symptoms, such as fever or chills and a cough or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA. If COVID-19 is like seasonal influenza, these inquiries are not disability-related. If COVID-19 becomes severe, the inquiries, even if disability-related, are justified by a reasonable belief based on objective evidence that the severe form of pandemic influenza poses a direct threat. 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, because this is not a disability-related inquiry. 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 work remotely as an infection-control strategy? Yes. In addition, employees with disabilities that put them at high risk for complications of pandemic influenza may request telework as a reasonable accommodation to reduce their chances of infection during a pandemic. May an employer require its employees to adopt infection-control practices, such as regular hand-washing, and wear personal protective equipment, such as face masks, gloves or gowns, at the workplace? Yes. These requirements do not implicate the ADA. However, if employers require protective equipment, employees with disabilities who need a reasonable accommodation (e.g., non-latex gloves), must be provided these, absent undue hardship. May an employer ask an employee why he or she has been absent from work if the employer suspects it is for a medical reason? Yes. Asking why an individual did not report to work is not a disability-related inquiry. An employer is always entitled to know why an employee has not reported for work. May an employer require employees who have been away from the workplace during a pandemic to provide a doctor’s note certifying fitness to return to work? Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees. Title VII Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against its employees based on race, color, religion, sex and national origin. State anti-discrimination laws may include additional protected classes. During the COVID-19 pandemic, anti-discrimination laws continue to apply. Employers cannot treat those employees who may be from parts of the world where COVID-19 is prevalent (e.g., those of Asian, Iranian, Italian descent), or any other race/national origin differently, due to fears about the virus. For example, an employer cannot compel all employees to take the influenza vaccine regardless of their medical conditions or religious beliefs. Under Title VII, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA). Under the ADA, an employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). DORA LANE T. 775.327.3045 Send Email

Sick Leave

Last updated 3.16.2020 Colorado Temporary Rule Mandates Paid Sick Leave On March 11, 2020, the Colorado Department of Labor and Employment (CDLE) published emergency rules (“Help Rules”) which temporarily require employers in certain industries to provide paid sick leave to employees with flu-like symptoms while awaiting COVID-19 testing. The emergency rules took effect immediately and will remain in place for 30-days, or longer if the state of emergency declared by the Governor continues. The HELP Rules apply to select industries which include: leisure and hospitality; food services; child care; education, including transportation, food service, and related work at educational establishments; home health, if working with elderly, disabled, ill, or otherwise high-risk individuals; and nursing homes and community living facilities. Covered employers must offer at least four days of paid sick leave and provide up to four paid sick-leave days to employees with flu-like symptoms and who are tested for COVID-19. If an employer already provides paid sick leave, this requirement is not on top of sick leave an employer already provides. It also does not cover wage replacement should an employee test positive and require quarantine resulting in lost work time and wages. The HELP Rules provide that employees and employers should comply with FMLA procedures “[t]o the extent feasible” to pursue and provide paid sick leave under the HELP Rules, but the rules prohibit employers from terminating employees for failure or inability to provide FMLA-related documentation during an illness covered by the HELP Rules. Employees who take paid sick leave pursuant to the HELP Rules are entitled to their regular rate of pay (as defined under the recent COMPS Order, 7 C.C.R. 1103-1 § 1.8) for the employer’s regularly worked hours. Failure to provide paid sick leave required under the HELP Rules constitutes a failure to provide wages under, for example, Colo. Rev. Stat. § 8-4-109, and can subject the employer to penalties and possibly attorney fee awards. Retaliation against an employee for taking paid sick leave under the HELP Rules is likewise prohibited. EMILY HOBBS T. 303.295.8584 Send Email

Retaining Employer Discretion to Modify Workplace Policies

Last updated 3.15.2020 With any emergency or new policy revisions or changes, it is important to retain employer discretion to modify policies going forward. Most employers have a written acknowledgment at the end of their current handbook or policies that indicates the policies do not create a contract and that retains employer discretion to modify all such policies. This is critical to retain as employers are updating or modifying policies during the Coronavirus outbreak and related circumstances. Employers may use or update their current acknowledgment form to address this. However, it is good practice to further update this form under the present circumstances where governmental emergency legislation, programs and guidelines are certain to continue. Employers should indicate that any interim or emergency policies are subject to change at any time based on company discretion and business needs and considerations, as well as based on any government-led issues, legislation, programs and guidance. Specifically, employers may want to suggest that any new employer benefits or policies provided specifically in response to the Coronavirus will be revised or offset by any potential government mandated or available plans and benefits. BRYAN BENARD T. 801.799.5833 Send Email

I-9 Verification Policy and USCIS Signatures

Last updated 3.23.2020 DHS Announces Relaxed Standards for I-9 Verification and USCIS Signatures On Friday, March 20, 2020, the Department of Homeland Security announced several new and unprecedented changes intended to assist employers during the coronavirus pandemic. The new rules permit copies of employer and attorney signatures rather than originals on certain immigration forms submitted to the USCIS such as the forms associated with the H-1B visa, and more flexible standards in completing the I-9 Employment Eligibility Verification Form. Specifically, for the next 60 days, employers may remotely view I-9 identity and work authorization documents such as a driver’s license or Social Security card remotely by video conference or by e-mail. This applies only to new hires working off-site and on-site employees whose documents cannot be verified in-person due to quarantine or lockdown requirements. Please see the suggested policy below. Read more... ROGER TSAI T. 303.295.8171 Send Email

Executive Order On Immigration

In light of the impact of COVID-19 on the U.S. labor market, on Monday President Trump tweeted “I will be issuing a temporary suspension of immigration into the United States.” Yesterday, the President signed an Executive Order with a much more limited scope that only temporarily suspends U.S. Embassies from issuing green cards (permanent residency) for immigrants applying outside the U.S for 60 days. Because 90% of green card applicants are in the U.S. and apply through the US Citizenship and Immigration Service rather than U.S. Embassies, most green card applicants will not be affected. Even those applicants outside the U.S. who might have been impacted by the Executive Order already faced closures of U.S. Embassies around the world due to COVID-19. The Executive Order, as written, will not impact existing green card holders, permanent residency applicants with pending applications at USCIS, immigrant workers with temporary work visas such as the H-1B, L-1, or TN visas. The Executive Order also exempts healthcare professionals, spouses and children of U.S. citizens, and immigrant investors. The Department of State and the Department of Homeland Security may issue policy memos in the next few days which will explain how the Executive Order will be implemented. One of the more concerning aspects of the Executive Order is a request to the Department of Homeland Security, Department of State, and Department of Labor to “review nonimmigrant programs,” such as H-1B, TN, and L-1 visas, and recommend other measures to stimulate the U.S. economy and ensure the prioritization, hiring, and employment of United States workers. While no measures have been proposed yet, past recommendations have focused on elevating adjudication standards, raising immigration application fees, introducing requirements to conduct labor market tests to locate qualified U.S. workers before hiring foreign workers, or limiting the work authorization of dependent spouses. These federal agency recommendations will be provided to the President in 30 days, and may result in additional measures. Who this Order affects: From April 23, 2020 to June 22, 2020, immigrants currently outside the U.S. will be refused entry if they:

• Do not have either an immigrant visa that is valid as of the effective date above, OR
• Do not have an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on the effective date above, or issued on any date thereafter that permits them to travel to the United States and seek entry or admission.

Who this Order does not affect:

• Foreign nationals living and working in the United States who seek to become green-card holders
  • Additionally, the order will not affect the adjudication of PERMs, I-140s, or I-485s for these individuals
• Foreign nationals currently in the United States on non-immigrant visas (such as H-1B, L-1, or TN visas)
• Foreign nationals outside the U.S. seeking to enter the United States on non-immigrant visas (such as H-1B, L-1, or TN visas)
• Agricultural H-2A guest workers
• Lawful permanent residents or green card holders
• Foreign nationals who seek to enter the United States on an immigrant visa for a position in the healthcare field (physician, nurse, medical research) or a related field that helps to fight COVID-19, and their spouse and unmarried children under 21 years old
• Foreign nationals applying for the EB-5 Immigrant Investor Program
• Foreign national who is the spouse of a United States citizen or who is under 21 years old and is the child of a United States citizen
• Asylees, refugees, or Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment applicants
• Foreign nationals in the United States Armed Forces and any spouse and children of a member of the United States Armed Forces
• Foreign nationals entering for national interest purposes

What Happens Next:

• The order indicates that no later than 50 days from April 23, 2020 (June 12, 2020) the Secretary of Homeland Security, Secretary of State, and Secretary of Labor will recommend whether the order will be continued or modified.
• The order also states that within 30 days of April 23, 2020 (May 23, 2020) the Secretary of Homeland Security, Secretary of State, and Secretary of Labor will “review nonimmigrant programs” (such as H-1B, TN, and L-1 visas) and recommend other measures to stimulate the U.S. economy and ensure the prioritization, hiring, and employment of United States workers.

ROGER TSAI T. 303.295.8171 Send Email

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Health, Welfare, and Other Benefits

Extended Deadlines Last updated 4.20.2020 What’s The Problem: COVID-19 has made it difficult to meet certain deadlines with respect to plan administration. Answer: The IRS granted limited relief to filing deadlines, including certain Form 5500 relief, under IRS Notice 2020-23 on April 9, 2020. A Form 5500 that is required to be filed between April 1, 2020 and July 14, 2020 is now due July 15, 2020. The relief does not impact calendar year plans as the normal due date for filing Form 5500 (July 31st) falls outside of the delay period. This extension helps some non-calendar year plans and potentially plans with short plan years that caused the Form 5500 deadline to occur during that period.
Health Plan Coverage of COVID-19 Last updated 4.1.2020 What's the Problem: One potential barrier to getting people tested is the expense of medical treatment. For participants in employer-sponsored health plans, they may be reluctant to incur copay or deductible expenses. Answer: The Family First Coronavirus Response Act now requires (as of the date of the enactment of the Act, March 18, 2020) all group health plans (fully insured and self-insured) to provide COVID-19 testing to plan participants and their covered beneficiaries without cost sharing (i.e., co-pays, deductibles and coinsurance) and without imposing prior authorization requirements or other medical management requirements.The Families First Coronavirus Response Act is available here. Covered services include facility charges (including office visit, urgent care visit, emergency room visit) and the cost of all services (provided in person or by telemedicine) and all items used in administering the COVID-19 test as well as the costs associated with evaluating whether a COVID-19 test is required. The coverage requirements are limited in duration to the period of a national health emergency as declared by the Director of Health and Human Services. Failure to provide these benefits would constitute a violation of Part 7 of the Employee Retirement Income Security Act and other similar benefits laws. The CARES Act (signed on March 27, 2020) has modified and expanded on a permanent basis required coverage for COVID-19 testing without cost sharing to include COVID-19 tests that are in the process of being approved by the federal government, tests that have been approved by certain state labs, and other tests the Secretary of the Health and Human Services approves. In addition, group health plans (fully insured and self-insured) are also required to cover COVID-19 immunizations and similar mitigation services as preventive health services without cost sharing. These services must be made available under the plan within 15 days of the date the immunization is given an “A” or “B” rating by the United States Preventive Services Task Force or is recommended by the CDC as an appropriate immunization for the person considered. BRET BUSACKER T. 208.383.3922 Send Email HSA Considerations Last updated 3.23.2020 What's the Problem: Can a health plan waive copay or deductible amounts for Coronavirus screening tests for individuals enrolled in a high deductible health plan or will these payments cause the plan to cease to qualify as a high deductible health plan and thereby make the enrollees ineligible to be making contributions to a health savings account? Answer: Yes. Even before the FFCRA, IRS Notice 2020-15 expressly confirms that an HDHP may eliminate or reduce the deductible for benefits received or items purchased associated with Coronavirus testing or treatment with no effect on the plan’s status as a high deductible health plan under Internal Revenue Code Section 223(c)(A). More generally, the HSA and HDHP rules allow for enrollees to receive “preventative care” services before reaching the deductible. The IRS notice that defines the scope of preventative care in this context is Notice 2004-23, which creates a safe harbor for preventative care screening services that are listed on the appendix to the notice. One of the screening services on the safe harbor list is “infectious diseases.” Thus, an HDHP can cover screening for infectious disease, such as Coronavirus testing, as a preventative service without cost-sharing. IRS Notice 2020-15 goes further than this, however, and allows lower (or no) deductibles to apply to benefits received or items purchased that are associated with treatment of COVID-19 and not merely associated with screening for the virus. GABE HAMILTON T. 208.383.3952 Send Email ​ KEVIN SELZER T. 303.295.8094 Send Email Telemedicine & HSAs Last updated 4.1.2020 What’s the Problem: To alleviate the risk that people would be exposed to COVID-19 during unrelated medical visits to medical facilities, some telemedicine providers are encouraging employers to offer telemedicine at no copay or deductible for any medical condition during the pandemic. But that is broader than Notice 2020-15 would allow. Does providing telemedicine with no cost sharing cause any problem? Answer: The CARES Act addresses this issue by temporarily amending the Tax Code to permit group health plans to provide any service with zero cost sharing through telemedicine (including services completely unrelated to COVID-19) without jeopardizing participant HSA eligibility. This special exception to the general HSA rules will remain in effect until the first plan year starting in 2022. BETH NEDROW T. 406.896.4635 Send Email Cafeteria Plan Last updated 3.29.2020 Mid-Year Changes to Cafeteria Plan Elections Employees whose daycare and commuting circumstances have changed due to the COVID-19 outbreak may want to make mid-year changes to various benefit plans. Dependent Care Flexible Spending Accounts FSA elections for pre-tax accounts administered for commuter benefits—Qualified Parking and/or Qualified Transportation—and/or dependent care expenses may be eligible for mid-year change. Question: My child’s daycare center closed due to COVID-19, and I am now working from home. Can I decrease my dependent care FSA election amount as I do not need daycare services right now? Answer: Yes, if your expenses have decreased because your child’s daycare center has closed, you can temporarily change or cancel your deferral. Question: My child’s school is closed due to COVID-19. I now need to pay someone to watch my child in my home. Can I increase my dependent care FSA election? Answer: Yes, you may increase your election if your child being unable to attend school results in an increase in daycare expenses. Commuter FSA: You are always able to make changes to your Qualified Parking and/or Qualified Transportation election amount. IRS regulations permit you to increase or decrease your monthly election amount at any time, if you find that the amount you are contributing exceeds your spending. This includes for the time spent working from home during government-issued stay-at-home orders. Mid-Year Changes to Healthcare FSA and other Benefit Plans At this time, the IRS still requires a qualified change in status (e.g., birth, marriage, divorce, job change impacting coverage) before you can change your deferral election to a healthcare FSA. Your plan will have a deadline, often a 30-day window, to make qualified changes, and you must provide evidence of the reason for the change when you make the request. The same mid-year status change rules generally apply to other benefit elections, such as coverage under a medical plan. Employers should check their cafeteria plan document to confirm that midyear election changes are available under plan terms. If the cafeteria plan does not permit midyear changes, employers can consider amending the plan to provide eligible employees the opportunity to make changes to account for their changed circumstances. Once the employer confirms that these changes are permissible, the employer can communicate the employees’ options. REBECCA HUDSON T. 303.295.8005 Send Email Qualifying Medical Expenses under Health FSAs, HSAs and HRAs Last updated 4.1.2020 Problem: COVID-19 symptoms may be mild and treatable with over the counter remedies, but these expenses aren’t paid for by the health plan. How can the plan promote access to over the counter medications? Answer: The CARES Act provides that non-prescription and over the counter drugs constitute qualifying medical expenses and as such, the cost may be reimbursed from Health Flexible Spending Accounts (FSAs), Health Savings Accounts (HSAs) and Health Reimbursement Accounts (HRAs). In addition, the CARES Act also provides that menstrual care products constitute medical expenses for Health FSA, HSA, and HRA purposes. BETH NEDROW T. 406.896.4635 Send Email ​ KEVIN SELZER T. 303.295.8094 Send Email

Retirement Plan

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Extended Deadlines Last updated 4.20.2020 What’s The Problem: COVID-19 has made it difficult to meet certain deadlines with respect to plan administration. Answer: The IRS granted limited relief to filing deadlines, including certain Form 5500 relief, under IRS Notice 2020-23 on April 9, 2020. A Form 5500 that is required to be filed between April 1, 2020 and July 14, 2020 is now due July 15, 2020. The relief does not impact calendar year plans as the normal due date for filing Form 5500 (July 31st) falls outside of the delay period. This extension helps some non-calendar year plans and potentially plans with short plan years that caused the Form 5500 deadline to occur during that period. We are hoping that additional guidance may be on the way. Notice 2020-23 also extended other plan-related deadlines to July 15, 2020 for deadlines occurring during the delay period, including deadlines related to:

• plan loan repayments;
• distributing excess deferrals; and
• indirect rollovers.

Hardship Distributions Last updated 4.1.2020 What’s the Problem: Employers sponsoring 401(k) plans are preparing for an increase in hardship withdrawal requests. What issues should they be mindful of? Answer: COVID-19 is likely to present serious financial difficulties for individuals and employees. Employers and plan administrators should expect to receive inquiries from participants regarding access to retirement savings. COVID-19 could form the basis for a hardship distribution depending upon the terms of the employer-sponsored retirement plan. Most plans limit hardship distributions to the IRS for “safe harbor” reasons. The safe harbor definition of permissible hardship expenses includes expenses for medical care (for the employee, employee’s spouse, employee’s dependents or employee’s primary beneficiary) to the extent the care would be deductible under Code Section 213(d). The safe harbor definition also includes expenses and losses incurred by the employee as a result of a FEMA declared disaster. While President Trump’s declaration of national emergency did not constitute a FEMA disaster and therefore didn’t qualify as a hardship under the safe harbor definition, many states have now petitioned and been granted FEMA disaster status. Employers can access FEMA’s website for updates on each state’s disaster declaration: www.fema.gov Now might be a good time to consider the e-certify streamlined process for hardship distributions. This process has been available for several years under existing IRS guidance, and permits the TPA to accept limited documentation from participants. Don’t forget, however, that the employer will have an obligation to spot-check audit the hardship process on a quarterly if not annual basis. In the event that the situation leads to unpaid leaves of absence, there could be other issues such as problems making loan repayments, or needs for hardships under provisions for other permitted types of hardship expenses such as tuition or payments to prevent eviction from the participant’s principal residence. Employers may also see a corresponding uptick in participants taking plan loans. Coronavirus-Related Distributions and Loan Relief What’s the Problem: Employees are facing financial difficulties due to COVID-19 and looking to access retirement account balances to help supplement or replace lost income. What options are available? Answer: The CARES Act increases available retirement plan distributions and the amount of loans available from retirement plans to participants. Coronavirus-Related Distributions Plan sponsors may now offer participants the option to take coronavirus-related distributions (CV distributions) of up to $100,000 from their accounts in qualified retirement plans, 403(b) plans, and governmental 457(b) plans.

• CV distributions will be available to participants who become ill (or whose spouses or dependents become ill) from COVID-19 or who experience adverse financial consequences from being furloughed, laid off, or quarantined; losing childcare; losing work hours; or other impacts identified by the U.S. Department of Treasury. Participants will be able to self-certify their eligibility for a distribution.
• CV distributions are available effective immediately and may be taken up until December 30, 2020.
• CV distributions are not subject to the 10% early withdrawal penalty for distributions to made participants under age 59.5. While the distributions otherwise remain taxable (unless repaid, as discussed below), participants may include the income from the distribution ratably over a 3-year period.
• Participants are permitted to repay CV distributions within 3 years of the distribution. If the distribution is repaid within the 3-year period, it will be treated as a rollover.

Changes to Plan Loan Rules The Internal Revenue Code was amended to increase the maximum plan loan amount available from $50,000 to $100,000 (or 100% of a participant’s vested account if less than $100,000) for loans taken within the 180-day period following the enactment of the CARES Act for participants who become ill (or the participant’s spouse or dependents become ill) from COVID-19 or experiences adverse financial consequences as a result of being furloughed, laid off, or quarantined; losing childcare; losing work hours; or other impacts identified by the U.S. Department of Treasury in connection with COVID-19. Additionally, effective for both existing loans made prior to the CARES Act and new loans taken prior to December 31, 2020, loan repayment dates are permitted to be delayed for 1 year if a participant with a loan becomes ill (or the participant’s spouse or dependents become ill) from COVID-19 or experiences adverse financial consequences as a result of being furloughed, laid off, or quarantined; losing childcare; losing work hours; or other impacts identified by the U.S. Department of Treasury in connection with COVID-19. Waiver of Required Minimum Distributions What’s the Problem: Participant retirement plan accounts have been impacted by the turmoil in the financial markets and required distributions could cause investments to be sold at a loss. Does the plan have to process required minimum distributions (RMDs) during this time? Answer: The CARES Act eliminates RMDs for 2020. Participants who are required to take RMDs from their retirement plans (generally those over age 72) are not required to take RMDs for 2020 or 2019 RMDs that were to be made by April 1, 2020 for participants age 70.5 and older. The RMD waiver applies to all qualified defined contributions plans, 403(b) plans, governmental 457(b) plans, and individual retirement accounts (IRAs). Further, the year 2020 will be disregarded for purposes of determining the 5-year period for the required depletion of inherited retirement plan accounts and IRAs. Finally, distributions of amounts that would have otherwise been subject to RMDs in 2020 may be rolled over. Partial Plan Terminations What’s the Problem: A company that terminates a substantial portion of its workforce might be required to fully vest accounts in its 401(k) plan. What does the IRS look for in determining whether a partial plan termination has occurred? Answer: Companies in industries that will be particularly hard hit by the financial impact of COVID-19 should be mindful of the partial plan termination rules when considering layoffs. The IRS regulations require that on a complete termination of a retirement plan, participants must be fully vested in their accounts. The IRS has long had a practice of extending this principle to partial plan terminations. The IRS requires retirement plans to 100% vest all participants who are affected by a partial plan termination. There are no bright line rules for determining when the tipping point has been reached, but previous rulings from the IRS have made clear that a partial plan termination might occur as a result of one or a chain of group layoffs. If an employer will be making layoffs and has unvested amounts in its 401(k) plan, they should consult with their advisors to see if vesting might be required. Plan Investments What’s the Problem: What steps should a fiduciary take in monitoring employer retirement plan investment lineups? Answer: The financial turmoil is also causing investment performance in retirement plans to sag. While experts may advise plan fiduciaries to “stay the course,” those fiduciaries should continue to monitor investment performance, ask experts questions as to prudent actions, and properly document the steps taken by the fiduciaries to monitor the situation. Fiduciaries should check their plan investment policies to determine whether any actions are required at this time and consult with their plan financial advisors about proper actions, if any. Valuation Issues What’s the Problem: Can an employee stock ownership plan continue to use its December 31, 2019 valuation of company stock? Answer: For “balance forward” plans like private company employee stock ownership plans (where plan assets are not valued on a daily basis), market volatility is particularly challenging. Many ESOPs are in the process of or have just completed their December 31, 2019 valuations. Most likely that process will continue on course, but the question immediately becomes whether the product is now stale. Most plans allow for an interim valuation date. It is important to follow the fiduciary delegations in each plan document when determining whether an interim valuation date will be set, and what the impact is on participant distributions, diversification, and other plan administrative processes.
BRENDA BERG T. 303.295.8029 Send Email KEVIN SELZER T. 303.295.8094 Send Email BETH NEDROW T. 406.896.4635 Send Email BEN GIBBONS T. 208.383.3981 Send Email BECKY ACHTEN T. 406.896.4615 Send Email

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Equity Incentives

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Equity Incentive Considerations During COVID-19 Crisis Last updated 3.31.2020 Underwater Employee Stock Options An unprecedented period of price volatility and general decline for many companies has left employee stock options with exercise prices below the current fair market value of the underlying stock. It is possible to reprice, exchange, or supplement employee stock options with new awards. Each approach has differing levels of legal complexity, there are pros and cons for each approach, and it is important to plan and execute these steps so that they are effective and not done repeatedly (repricing or making new awards at a value that shortly after goes underwater defeats the purpose). While employee stock options are generally intended to serve as mid- to long- term incentives, projections for how the COVID-19 situation will affect business models and stock prices are very difficult if not impossible at this time, and the extreme volatility means that new awards made today could be substantially underwater tomorrow. Now might be a good time to review the equity incentives for key employees including identifying the organization’s key service providers, reviewing the equity incentives held by the key service providers (as well as the overall compensation package), and planning for what adjustments might be needed for price projections when possible. In previous downturns—2001-2002 and 2007-2008—there was a period of shock soon followed by a shopping period as cash rich acquirers realized their leverage and began to acquire talent and companies. Performance Metrics for Incentive Bonus and Equity Award Vesting The historic change in the economy and company performance has made many performance goals set as incentive vesting or payout measurements unattainable. Companies can look to adjust goals to match attainable metrics where those metrics can be identified. In some cases, shifting from absolute or company specific metrics to metrics that are measured relative to an index or a peer group may allow improved goal setting. In other cases, it may simply make sense to communicate that the company is aware of the issue and looking to address it when the situation stabilizes. Share Reserves Companies with ESPPs and equity incentive plans may find that share reserves are used sooner than expected with the need for additional grants or larger purchases at lower prices. Projecting share use for equity plans at a range of new stock price estimates can help project whether share reserves are adequate for the time periods the reserves are expected to cover. If likely shortfalls are identified, company directors can plan for conserving share reserves or obtaining additional shares in equity plans which often involves shareholder approval. Valuation Issues Extreme changes to the business environment have greatly impacted company stock prices, and while public companies have a market price to use for establishing fair market value on the date of grant as required under Code Section 409A for employee stock options, private companies typically rely on a board determined fair market value or an independent valuation. In each case for a private company, the valuations must be updated when there is a material change to the business, and in periods of extreme volatility, it can be difficult to obtain a value that lasts for long enough to grant employee stock options. In some cases, private companies can have independent valuations updated and make awards quickly enough to rely on the valuation, but in other cases, it might make sense to promise employees cash incentives based on a certain number of shares (phantom or synthetic awards) or other cash retention incentives as a surrogate for employee stock options. JOHN LUDLUM T. 801.799.5953 Send Email

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Labor Unions

Collective Bargaining Agreements

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Last updated 3.16.2020 For Employers with employees covered by a Labor Agreement

• Check your Collective Bargaining Agreement (CBA) carefully to avoid violations of the CBA in respect to any bargained-for benefits and/or any changes to such benefits or policies implemented on account of COVID-19
  • for those employees covered by a union-sponsored health & welfare insurance plan
    • check with the union to determine what the plan provides, e.g. what is/is not covered
    • consider asking a representative from the insurance plan to prepare a short summary of coverage and options for the employees
    • consider whether the company is willing to supplement payment for COVID-19 related testing or for other related issues that may not be covered
      • for example, consider offering to pay for COVID-19 related testing, or covering co-payments/deductibles directly related to COVID-19 testing
      • if the company is considering changing or supplementing the terms and conditions of its employees' employment, then give notice and an opportunity to discuss it with the union ahead of time
  • for employees covered under a company-provided health insurance plan
    • check with a plan representative and determine what the plan provides, e.g. what is/is not covered
    • consider asking a representative from the insurance plan to prepare a short summary of coverage and options for the employees
    • consider whether the commpany is willing to supplement payment for COVID-19 related testing or for other related issues that may not be covered
      • for example, consider offering to pay for COVID-19 related testing, or covering co-payments/deductibles directly related to COVID-19 testing
      • altering, changing or supplement—even to the employee's benefit—the terms and conditions of employment, triggers the need to give notice and an opportunity to discuss it with the union ahead of time

• Sick leave
  • If the CBA provides for sick leave
    • determine whether the CBA "rules" for sick-leave use allow for short notice, emergency notice, or after-the-fact requests to use sick leave related to COVID-19
      • determine whether the CBA allows the company to compel an employee to use sick leave for public health reasons
      • if the CBA is not clear or there is any concern that the union may challenge the company's actions, then discuss with the union before taking action
  • If the CBA does not provide for sick leave (or available leave is insufficient)
    • consider implementing temporary COVID-19-related paid leave of up to two weeks with documentation of a positive COVID-19 test, a positive COVID-19 test for a person living in the employee's household, or potential infection from vacation to/visiting a CDC category 3 area
      • REMEMBER: if an infected employee comes to work because he/she "can't afford" to miss time—they will likely cause other employees to miss work
    • providing additional leave changes the employees' terms and conditions of employment, which means the company must give the union reasonable notice and an opportunity to discuss it ahead of implementation

• Vacation leave
  • if all other forms of available leave are exhausted, not available, or not an option
    • consider allowing sick employees—at their option—to take time off/cover with vacation
    • altering a leave policy is likely a change to the employee's terms and conditions of employment which triggers the requirements to provide the union reasonable notice and an opportunity to discuss it ahead of implementation

• Communication
  • Keeping the business agent/local leadership informed as to company plans/policy changes is advisable
  • unions do not benefit from having the employees they represent get sick or panic
  • with respect to COVID-19 most unions are going to be willing to work with management to resolve these issues
  • be sure to communicate clearly and in writing/via email—the company will likely want any changes made to be temporary and not precedent setting

BRIAN MUMAUGH T. 303.295.8551 Send Email

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Workplace Safety

OSHA

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OSHA Guidance Revised: Recordkeeping and Recording of COVID-19 Cases and Updated Plan for Enforcement Response and Inspections Last update 5.20.20 OSHA issued two important memorandums on May 19, 2020 revising its enforcement guidance related to COVID-19. Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19) This memorandum revises OSHA’s position on recording COVID-19 cases in the workplace and rescinds OSHA’s earlier guidance that largely limited enforcement of recordkeeping requirements for COVID-19 to the healthcare industry, emergency response organizations, and correctional institutions. Effective May 26, all employers subject to the recordkeeping requirements must record confirmed cases of COVID if the illness otherwise meets the recording requirements. OSHA’s memo acknowledges the difficulty in determining work-relatedness for COVID-19 cases and stated that it will consider the following when determining whether an employer has complied:

• The reasonableness of the employer's investigation into work-relatedness.
• The evidence available to the employer.
• The evidence that a COVID-19 illness was contracted at work.

The memo provides additional detail and examples regarding when COVID-19 is likely (or not) work-related. If, after a “reasonable and good faith inquiry,” the employer cannot determine whether it is more likely than not that the case is work-related, the employer is not required to record the illness. Updated Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19) This memorandum revises OSHA’s prior inspection guidance that prioritized fatal and imminent danger exposures to COVID-19, particularly in healthcare organizations and for first responders, and significantly limited inspection scope in other cases. The memo states, “OSHA will return to the inspection planning policy that OSHA relied on prior to the start of the COVID-19 health crises” for areas where the spread of COVID-19 has “significantly decreased,” but it will continue to prioritize COVID-19 cases and use phone and fax investigations when necessary. For areas where COVID-19 has sustained or increased, area directors will exercise discretion to continue to prioritize COVID-19 fatalities and imminent danger exposures and limit the scope of other inspections based on available resources. ROBERT AYERS T. 307.734.4514 Send Email
OSHA Guidance Relaxes Recordkeeping for Some Employers Last updated 4.14.2020 On April 10th, OSHA released updated guidance regarding compliance with recordkeeping standards and related requirements during the current COVID-19 pandemic. Unlike influenza, contraction of COVID-19 may be recordable and reportable under OSHA’s recordkeeping requirements set forth in 29 CFR § 1904. However, OSHA’s April 10 guidance, Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19), states that OSHA will not enforce 29 CFR § 1904 for recording or reporting alleged work-related cases of COVID-19, effective immediately and until further notice, except when:

• There is objective evidence that a COVID-19 case is work related, such as a cluster of cases developing among workers in close proximity and no other alternative explanation to the outbreak exists; and
• The employer has readily available evidence confirming a COVID-19 case, such as information provided by an employee or information obtained by the employer during daily operations.

These exemptions do not apply to employers in health industries, emergency response organizations, or correctional institutions. These employers are required to continue making work-relatedness determinations pursuant to OSHA’s standards. OSHA intends for this enforcement guidance to allow employers to focus response efforts on implementing good hygiene in the workplace. Employers operating in state plans must confirm with their respective administrator whether the jurisdiction is enforcing federal guidance or more restrictive requirements. CDC Issues Interim Guidance for Critical Infrastructure Workers Last updated 4.10.2020 In an attempt to keep critical infrastructure from being crippled by worker shortages as a result of the COVID-19 outbreak, the CDC issued new interim guidance on Wednesday, April 9, 2020, directed at workers in critical industries who may have been exposed to the virus. The new advice allows potentially exposed workers to continue working, rather than self-isolate, provided that they remain asymptomatic and adhere to additional protective measures. The guidance pertains to 16 workforce sectors including workers in energy, transportation, and government facilities. The guidance defines “potential exposure” as being in the same household or having close contact with an individual who has been confirmed as having or is suspected to have COVID-19. This includes contact in the 48 hours prior to the individual become symptomatic. Despite the precautions listed below, the CDC confirms that any employee who has direct contact with an individual with suspected exposure will also be considered to have been exposed. Critical workers who have been exposed to COVID-19 but remain asymptomatic are advised to undergo the following:

• daily pre-screening for temperature and other related symptoms prior to entering any facility;
• undergo continuous monitoring during their shift;
• wear a mask at all times for 14 days following their last exposure;
• maintain social distancing; and
• routinely disinfect offices, bathrooms, shared electronic equipment and common areas.

Additionally, employers should increase the frequency of office cleaning, attempt to increase air exchange in confined rooms, and stagger work schedules.