Telemedicine as “in-person” visits under the FMLA, HOA/condo associations as businesses, worker classification regulations, medical marijuana, benefits from the Dec. 2020 appropriations act, and more in Our Social Media Posts This Week, January 24 – 30, 2021.

Below is a review of the posts (on Facebook, LinkedIn, and Twitter) from the past week. You can check out the full posts by clicking on the links.

telemedicine as an ‘in-person’ visit under the fmla

In the post on Sunday 1/24/21 we learned that telemedicine appointments can be used to establish serious health conditions under the FMLA. Health care appointments were held via video conference pre-COVID, but that just increased the volume at warp speed. The Department of Labor has now said that those telemedicine visits qualify as in-person visits to a health care provider under some circumstances. This is important under the provisions of the FMLA (which specifies things that are NOT treatment as noted in the post). So, what must the telemedicine include to be considered an -in-person visit? First, it must be an examination, evaluation, or treatment by a health care provider. The other 2 things are listed in the post.

TAKEAWAY: Employers must know what can qualify as documentation of an in-person treatment for FMLA purposes; get legal assistance if you are unsure.

dept. of education directives related to transgender students

The post on Monday 1/25/21 told us that OCR doubled down on its position that Title IX equity rules do not protect transgender students. Yes, this is post-Bostock. Yes, this is important to you if you have children in school. First, who or what is OCR? The Department of Education’s Office of Civil Rights. Part of the federal agency. On January 8, 2021 (the day after Betsy DeVos resigned as SecEd and 12 days pre-inauguration), OCR issued a memo with its interpretation of Bostock and the (lack of) effect on OCR’s interpretation of Title IX. First, The Supreme Court in Bostock said that Title VII includes protection against discrimination in employment on the basis of sexual orientation and gender identity. OCR’s memo, however, says that Bostock does not apply to Title IX. Rather, OCR still says that allowing transgender students to engage in single-sex activities or the use of single-sex facilities matching gender identify are per se violations of Title IX. How does OCR come to that point? It says that Title IX may “require” consideration of the person’s biological sex. The memo also notes things that would not violate Title IX – see the post. The memo discusses athletics, intimate facilities, and sex-segregated programs. Relative to athletics, OCR says that Title IX requires school districts to separate participants solely based on biological sex. How OCR justifies that is in the post. This continues relative to intimate facilities and sex-segregated programs/activities as discussed in the post.

TAKEAWAY: Unless and until there is a change in direction from OCR, school districts are caught between OCR’s directive and any contrary state law.

hoa/condo associations operating and collecting funds as businesses

The post on Tuesday 1/26/21 suggested that HOA and condo association boards should operate more like a business. Why? Because failure to operate like a business can perhaps damage the association and result in creative reporting, lackluster enforcement or homeowner disengagement. What does that translate to? Moving too quickly to legal action or other things noted in the post. But one example given is in the area of collections (so important since payment of assessments is the heart blood of any association). Businesses often have policies as to how they handle accounts receivable; community associations should also. Such a policy might include a delinquency timeframe, a courtesy letter process, and other steps noted in the post.

TAKEAWAY: Any rule, regulation or policy enacted by an Association Board must be legal; consult a community association lawyer to keep you on the straight and narrow.

paying employees for voluntary covid-19 vaccines?

The post on Wednesday 1/27/21 showed us that Dollar General is to pay employees to receive the COVID-19 vaccine. It may have been first out of the gates, but now is joined by many other large employers in offering this carrot to employees. So, what is in the offing? A one-time payment equal to 4 hours’ regular pay for front-line hourly employees who present proof of a completed vaccine. The offer will be extended to other employees as noted in the post. This is one way to handle vaccines: not making it mandatory but encouraging it with an incentive. Keep in mind that if an employee who gets vaccinated experiences side effects, the employer might need to provide accommodation. If the incentive for vaccination is cash as part of a wellness program, then there are different considerations as noted in the post.  

TAKEAWAY: Employers not mandating COVID vaccines, but still encouraging it by employees, have different carrots available, but all must be legally compliant and be ready to deal with exceptions.

new employee-independent contractor classification regulations

In the post on Thursday 1/28/21 we learned that the US Department of Labor issued new worker classification regulations (that you need to know).  We are talking about classification as an employee or independent contractor under the FLSA. Under the Regs, the ““ultimate inquiry” is whether the person is economically dependent on the potential employer for work as economic reality. The Regs include a non-exhaustive list of factors to guide the determination, with the two most important being the nature and degree of control over the work  (an analysis is in the post of what would make this weigh in favor of an employment relationship and what in favor of a contractual relationship) and the other as noted and detailed in the post. There are also three other factors that are to be considered; they too are detailed in the post. Most of the provisions of the Regs parallel case law under the FLSA, but not all (as explained in the post). That is especially important to us here in PA relative to the decision from the 3rd Circuit referenced in the post.

TAKEAWAY: Keep alert and know what if anything must change if these Regs become effective on March 8, 2021. Consult an employment lawyer if you are not sure (because the penalties of treating someone as a contractor when they are an employee can be stiff).

medical marijuana and the disability accommodation process

The post on Friday 1/29/21 showed us that a PA medical marijuana user may proceed with disability discrimination and retaliation claims. Not that she was successful in the case, but that it survived the employer’s motion to dismiss. So, what happened? She tested positive for marijuana on a return-to-duty drug test. At that time, her medical marijuana card had expired. She later renewed it and provided a doctor’s note to the employer (the contents of which are noted in the post). The employer fired her after the positive test. She brought suit. In September 2020, the employer, Jefferson University Hospitals, moved to dismiss all claims. The Court denied that as to the medical marijuana claim, but granted it (without prejudice, meaning it could be brought again) as to the claims for disability discrimination and retaliation since she had not exhausted administrative remedies. More details on that are in the post. She then went back and did that, then added those claims to the still-pending medical marijuana claim. The essence of the claims was that the employer failed to accommodate her disability and terminated her in retaliation for requesting accommodation. In round 2, the employer again moved to dismiss all claims. What it argued as to the medical marijuana claim is noted in the post. As well as the bases on which the court rejected the arguments. Likewise, the court analyzed why the employer’s argument on the retaliation claim failed – it is noted in the post and is a good reminder that the underlying claim need not be successful to bring a successful retaliation claim. Stay tuned as the case continues forward.

TAKEAWAY: It is important to know your rights and responsibilities as part of the disability accommodation process; it shows up in so many ways. Get legal help if you are unsure.

benefits to individuals hidden in the dec. 2020 appropriations act

Finally, in the post yesterday 1/30/21, we saw an alert about the Families First Leave, Payroll tax, and employee benefits provisions in the Consolidated Appropriations Act. There was more in the Act than just another round of stimulus payments; know what might affect you. Yes, this is the Act passed by Congress December 21, 2020 and signed by then-President Trump on December 27, 2020. Yes, the legislation is 5593 pages long (that is not a typo). What got most of the headlines was the provision giving another stimulus payment, but other provisions tucked into all of those pages extend or replicate some of those in the CARES Act. First, there was an extension of tax credits for paid leave. Under the CARES Act, employers with 500 or fewer employees had to provide up to 80 hours of EPSL and up to 12 weeks of partially paid EFMLA leave to employees unable to work due to COVID-related reasons. The leave was funded via a tax credit for the employer. Under the CARES Act, the leave and tax credit expired December 31, 2020. What the new Act did was allow employers who voluntarily grant leave between January 1 – March 31, 2021 like what would have been required under the CARES Act to get the tax credit. The new Act did not add extra EFMLA leave but clarifies when leave is available by referring to how the employer looks at the 12-month FMLA period. Details on how both the tax credit and EFML leave provisions work under the new Act are in the post. Other provisions of the new Act include an expansion of employee retention tax credits, additional deferral of employee FICA taxes, distributions from money qualified plans (as defined in the post), changes to flexible spending account rules (for which employers must take special action but which are favorable to employees) and more, all of which are discussed in some detail in the post.  

TAKEAWAY: Beyond another stimulus payment, the new Act can be beneficial to both employers and employees; know what it can do for you.

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