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November, 2020, was a busy month for employment law.  Here are some of the significant updates from Pennsylvania and across the United States to stay up to date:

COVID Continues to Dominate Employer Concerns Heading into the Holiday Season

In Pennsylvania and across the United States, COVID cases are spiking, triggering decisive action by both state and federal governments.

Nationally, OSHA has issued approximately $2.5 million in penalties for COVID-related violations through the beginning of November.  Although OSHA has not implemented any COVID-specific workplace standards, OSHA still has authority to enforce general workplace safety standards, including that employers maintain a workplace that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm”.  Citations have been issued for, among other things, failure to report injury, illness or fatality; failure to properly record an injury or illness; and failure to implement a written respiratory protection program.

In Pennsylvania, effective November, 20, 2020, Pennsylvanians visiting other states are required to have a negative COVID-19 test within 72 hours prior to their return to Pennsylvania, or to quarantine for 14 days upon return to Pennsylvania, pursuant to an Order of the Secretary of Health.  The Order does not apply to people who commute to and from another state for work, travel for medical reasons, travel that only passes through a state, or travel by military personnel.  Notably, the Order specifically says it is not directing businesses how to comply: “The commonwealth does not dictate how businesses should implement the testing or quarantine requirement”.  In order to protect the workforce’s health and to prevent a shortage of available employees, some employers have responded by providing notice to employees that all employees are required as a condition of their employment to comply with the Order.

New Guidance from EEOC May Help Religious Employers Defend Bias Claims

The U.S. Equal Employment Opportunity Commission has issued proposed religious bias guidance that will likely strengthen the defense of religious employers against workplace bias claims.  Among other things, the updated guidance endorses a more open definition for what groups qualify for the “ministerial exception”, potentially clearing the way for for-profit organizations to benefit from the defense instead of only non-profit organizations.  The proposed guidance also incorporates the U.S. Supreme Court’s recent decision expanding the “ministerial exception” beyond members of the clergy and ministers to lay people such as Catholic schoolteachers.

The guidance will be open for public comment until December 17, 2020.

Pennsylvania’s Commonwealth Court of Appeals Approves Unemployment Benefits for Fired Medical Marijuana User

The Commonwealth Court of Pennsylvania recently affirmed the ruling of the Pennsylvania Unemployment Board of Review that a medical marijuana user who was fired for a positive drug test was entitled to unemployment compensation.  Notably, the employer’s drug policy pertaining to prescription medications was ambiguous with respect to medical marijuana, and the employee complied with the policy but notifying his superiors of his prescription.  The Board and Appeals Court concluded that the employee made good-faith efforts to comply with the employer’s policy, and therefore could not be shown to have engaged in willful misconduct.

 

Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff also represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work environment.

 

Employment law is constantly evolving.  Changes in this area can dictate, among other things, what policies businesses need to put in place, how a company must accommodate the needs of its employees, what language to include in contracts, and how to hire and fire.  Accordingly, it is critical for Pennsylvania employers to stay up-to-date.

The following are a few important legal updates from October, 2020:

OSHA clarifies COVID-19 Employer Reporting Obligations

OSHA recently provided some clarification on reporting related to COVID-19 via its dedicated site for frequently asked questions.

Under OSHA regulations, employers are required to report in-patient hospitalizations to OSHA if the hospitalization “occurs within twenty-four (24) hours of the work-related incident.” The term “incident” includes an exposure to COVID-19 in the workplace.  Therefore, to be subject to the reporting requirement, an in-patient hospitalization must occur within 24 hours of exposure to COVID-19 in the workplace.  If an employer later becomes aware that the hospitalization was COVID-19 related, the case must be reported within 24 hours of the employer’s determination.

Notably, this 24-hour limitation only applies to reporting to OHSA.  Employers are still required to record work-related confirmed cases of COVID-19.  This is a challenge for employers because of the difficulty of determining whether a COVID-19 case is work-related.  Some employers are recording all cases of employees having COVID-19 out of caution, and others are not recording cases unless and until they can clearly establish the case is work-related to avoid exaggerating their numbers.

EEOC Issues Proposal aimed at Improving Pre-Suit Conciliations

The EEOC proposed new regulations this month to modify its pre-suit conciliation process.  A conciliation is an informal process through which the EEOC tries to secure voluntary compliance from an employer before initiating a lawsuit against the employer.  In short, the proposal would establish new disclosure requirements that make it “more likely that employers have a better understanding of the EEOC’s position in conciliation”.  This disclosure would include the EEOC providing the employer with a “written summary of the known facts and non-privileged information that the Commission relied on in its” finding that unlawful discrimination occurred, including “identifying known aggrieved individuals”, unless the individual(s) have requested anonymity”.

Amazon sued by Transgender man for Pregnancy Discrimination

According to a lawsuit filed in the New Jersey federal court, online retailer Amazon discriminated against a New Jersey transgender man who worked in an Amazon warehouse after the employee informed his supervisor that the employee was pregnant.  The employee claims, among other things, that his supervisor assigned him to a role that required heavy lifting duties that the employee never had before the disclosure, declined the employee’s requests for accommodations that were supported by the employee’s physician, and subjected the employee to unfair criticism of the employee’s job performance.  The Supreme Court of the United States ruled in July, 2020, that discrimination against individuals because of their transgender status violates Title VII’s prohibition on discrimination because of sex.

New Jersey sits in the Third Circuit Court of Appeals along with Pennsylvania and Delaware.  This case could produce new law that could influence judges sitting in Pennsylvania federal district courts.

 

Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff also represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work environment.

The November 3rd general election is just a month away, and while the impact of the COVID-19 pandemic is likely to dominate the fiscal policy debate this election cycle, each presidential candidate has also introduced a number of competing tax proposals. The outcome of this election therefore has the potential to shape the tax code for both businesses and individuals for years to come. Although it is impossible to predict what will happen this November, we are carefully monitoring the proposed tax law changes and are ready to implement a number of tax-planning strategies tailored to your specific needs. Key elements of the candidates’ tax proposals are outlined below.

Biden’s Proposals:

Former Vice-President Joe Biden has proposed a variety of federal tax law changes in response to President Trump’s 2017 Tax Cuts and Jobs Act (“TCJA”), including the following proposals:

– Repeal the TCJA’s individual income tax cuts for taxpayers with income above $400,000 (i.e. back to the 39.6% tax rate).
Cap the value of itemized deductions to 28%.
Tax capital gains and dividends at the same rate as ordinary income for taxpayers with over $1,000,000 in income.
– Raise the corporate income tax rate from 21% to 28%.
– lnstitute a 15% alternative minimum tax on corporations with $100 million or more in profits.
– Raise the Global lntangible Low Tax lncome (‘GlLTl’) (a tax on income from foreign affiliates, including foreign-held intangible property and its related income) rate from 10.5% to 21%.
– Eliminate the automatic step-up in basis and tax unrealized capital gains at death. (We also assume that Biden would mandate the Federal Estate and Gifi Tax Exemption to o return to a pre-TCJA base of $5 million per individual.)
– lnstitute a 12.4% Social Security payroll tax, to be split between employers and employees, on income earned in excess of $400,000.
– Raise the Child Tax Credit, expand the Earned lncome Tax Credit, and enact new tax credits for certain family caregivers, first-time home buyers, and renters.
– Exclude forgiven student loan debt from taxable income.

Trump’s Proposals:

President Trump has generally expressed his intent to cut taxes and to preserve and expand on the TCJA, which includes the following proposals:

– Keep the top 37% tax rate right as is. ln addition, implement a 10% rate cut for middle- income taxpayers, effectively lowering the 22% rate to 15%.
– Make the TCJA changes for itemized deductions and the higher basic standard deduction permanent.
– Reduce tax rates for capital gains, index gains for inflation, and create a capital gains tax holiday for a limited time.
– Require a Social Security number for taxpayers to be eligible for the Child tax Credit or Dependent Credit.
– Enact the Education Freedom Scholarship tax credit, which would provide up to $5 billion worth of income tax credits annually for individual and corporate donations to state-identified not-for-profit scholarship-granting organizations.
– Preserve the current corporate tax rates under the TCJA.
– Preserve the higher Estate and Gift Tax Exemption and keep the current rules relating to the step-up in basis.
– The President recently issued an executive order that postpones Social Security tax for employees for September 1 through the end of 2020. He has said that this relief could turn into a permanent extension.

Ultimately, the outlook for legislative action in 2021 on tax proposals will depend on who is elected president and which party controls the House and Senate. Trying to guess how and when the tax code will change and planning for those changes now is an impossible task. Still, taxpayers should keep these proposals in mind when considering selling property, engaging in family tax and estate planning, or making business and investment decisions. We are constantly monitoring these proposed changes and are prepared to assist you regardless of what happens this November.

Give us a call today (Louis N. Teti (610) 840-0312; Joseph A. Bellinghieri (6i0) 840-0239; Duke K. Schneider (610) 840-0238; Kristin R. Matthews (610) 840-0272; Stephen M. porter (610) 840-0256; or, Tara A. Stark (302) 504-72801 to schedule an appointment to discuss how you might be impacted by the proposed tax law changes, and actions to consider in light of these proposals.