Reinhart Boerner Van Deuren s.c. Alerts and Updates

The U.S. District Court for the Southern District of New York on August 3, 2020, in the State of New York v. United States Department of Labor, vacated several key provisions of the U.S. Department of Labor’s (DOL) final rule implementing the Families First Coronavirus Response Act (FFCRA), creating a number of compliance issues for employers. Overview On March 18, 2020, President Trump signed the FFCRA into law. The FFCRA introduced two new types of leave intended to cover employee absences related to the COVID-19 pandemic: Emergency Paid Sick Leave (EPSL) and Emergency Family and Medical Leave (EFMLA). Employers…
RETIREMENT PLAN DEVELOPMENTS Second Circuit Allows IBM Stock-Drop Case to Proceed (Again) On remand from the Supreme Court, the Second Circuit Court of Appeals reinstated its original judgment in the stock-drop case Retirement Plans Committee of IBM v. Jander. The case will go back down to the district court for further proceedings. As we reported earlier this year, the Supreme Court vacated the Second Circuit’s decision and remanded the case after the plan fiduciaries and the federal government raised arguments not presented to the Second Circuit. The Supreme Court had agreed to review what it takes for stock-drop plaintiffs…
Recognizing the importance of protected leave for employees, the U.S. Department of Labor (DOL) has improved its Family and Medical Leave Act (FMLA) notice and certification forms. The changes are intended to address frequent problems the DOL confronts in exercising its enforcement authority. Although use of the new forms remains optional, the revisions do provide simpler formatting and greater clarity regarding the information an employer needs to process a leave request. For example, the Notice of Eligibility/Rights and Responsibilities form (WH-381) articulates in greater detail employers’ and employees’ rights and obligations associated with FMLA leave and potential consequences if…
Although the November 3rd general election is months away, the ballot for the presidential race has essentially been set for some time, with former Vice President Joe Biden and President Donald Trump each poised to become the official nominee of his respective party this August. While the economic impact of the COVID-19 pandemic is the major focus of fiscal conversation, a potential Biden administration could also result in sweeping changes to the existing income and transfer tax landscapes. While tax legislation necessarily originates in Congress, Biden has laid out a number of tax reforms that he would make a priority…
Wisconsin Gov. Tony Evers on July 30, 2020, issued an Emergency Order (Order) requiring every individual in the state of Wisconsin, age five and older, to wear face coverings when indoors. As discussed below, some exceptions, however, may apply to employees in certain situations. Specifically, individuals covered by the Order must wear a face covering when: They are indoors or in an enclosed space (as defined in the order), other than a private residence; and Another person or persons who are not members of the individual’s household or living unit are present in the same room or enclosed space. Employees…
The CDC has revised its recommendations regarding when an employee with a confirmed case of COVID-19 can end isolation and return to work. The change comes as accumulating evidence supports ending isolation using a symptom-based, rather than test-based, strategy. This change will limit unnecessary prolonged isolation and also reduce unnecessary testing related to the CDC’s previous recommendations, which permitted individuals to end isolation after two negative COVID-19 tests 24 hours apart. Under the CDC’s new recommendations, employees diagnosed with COVID-19 and showing symptoms can return to work after: at least 10 days since symptoms first appeared; at least 24 fever-free…
The Supreme Court of the United States on July 8, 2020, ruled in Our Lady of Guadalupe School v. Morrissey-Berru that the U.S. Constitution prohibits two lay teachers employed by religious schools from bringing discrimination claims against their employers. The Supreme Court’s ruling clarifies that the “Ministerial Exception” is not limited to employees of religious institutions with official religious titles. The Ministerial Exception—recognized in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC in 2012—bars courts from entertaining discrimination claims brought by certain employees of religious institutions. Specifically, the court found that an employee of an evangelical Lutheran school with the…
The Court of Justice of the European Union (CJEU), the European Union’s (EU) highest court, on July 16, 2020, struck down Privacy Shield—a trans-Atlantic framework that allowed companies to move data between the EU and the United States by self-certifying adherence to various privacy principles. As a result of the decision, the more than 5,000 businesses who relied on Privacy Shield must cope with the court’s decision and reevaluate the legal basis for their transfers of personal data between the EU and the U. S. Privacy Shield was created in 2016 to address concerns that the U. S. lacked adequate…
The Main Street Lending Program (Program) is finally up and running. In addition to the general parameters and terms of the Program – including borrower eligibility and the calculation of the maximum loan amount – here are five points specifically for lenders: Underwriting. The lender is expected to conduct its own underwriting of the borrower and assessment of the borrower’s financial condition and creditworthiness. The Program’s term sheets spell out the minimum requirements for the Program and do not prohibit the lender from, for example, requiring guaranties. The mere fact that a company is eligible under the Program does not…
The Main Street Lending Program (Program) is intended to facilitate lending to small and mid-sized businesses that were in sound financial condition prior to the onset of the COVID‐19 pandemic. The Program became fully operational on July 6, 2020. For a deep dive into the details of the Program, see our summary reflecting the most recent guidance. Under the Program, eligible lenders will originate new term loans (or expand the size of an existing credit facility) to eligible borrowers. A special purpose vehicle (SPV) funded by the Federal Reserve Bank of Boston will then purchase a 95 percent participation…
HEALTH AND WELFARE PLAN DEVELOPMENTS ACA Section 1557 Nondiscrimination and Bostock v. Clayton County On June 12, 2020, the Department of Health and Human Services (HHS) issued a final rule under Affordable Care Act (ACA) section 1557 generally eliminating the protections for sex discrimination based on gender identity and termination of pregnancy. On June 15, 2020, the U.S. Supreme Court (SCOTUS) issued its decision in Bostock v. Clayton County holding that discrimination based on sexual orientation or gender identity is sex discrimination under Title VII. Background Section 1557 prohibits covered health programs from discriminating on the basis of race, color, national origin, sex, age…
The Main Street Lending Program (Program) is intended to facilitate lending to small and mid-sized businesses that were in sound financial condition prior to the onset of the COVID‐19 pandemic. The Program became fully operational on July 6, 2020, nearly three months after the first proposals were released by the Federal Reserve. Under the Program, eligible lenders will originate new term loans (or expand the size of an existing credit facility) to eligible borrowers. A special purpose vehicle (SPV) funded by the Federal Reserve Bank of Boston (Reserve Bank) will then purchase a 95 percent participation in such loans (or…
The Internal Revenue Service (IRS) On June 19, 2020, released Notice 2020-50, to provide plan sponsors with additional guidance regarding coronavirus-related distributions and loan relief offered under the CARES Act. Much of IRS Notice 2020-50 reiterates the IRS’s position in the FAQs released last month and incorporates the IRS’s guidance for similar distribution options released following Hurricane Katrina. The IRS also released Notice 2020-51 on June 23, 2020, providing additional guidance on the impact of the SECURE Act and CARES Act on required minimum distribution payments made in 2020. IRS Notice 2020-50 Coronavirus Related Distributions The CARES Act permits sponsors…
The latest proclamation issued by President Trump on June 22, 2020, affects a much broader group of individuals than the April 22, 2020 proclamation and will be in effect from June 24, 2020 until December 31, 2020. The proclamation indicates that it may be extended or modified as necessary. Impacted directly by this new proclamation are those individuals seeking to enter the United States who: Are outside of the United States on or after June 24, 2020; Do not have a valid nonimmigrant visa that is valid on or after June 24, 2020; and Are seeking entry pursuant to any…
On June 17, 2020, OSHA issued new guidance for “non-essential businesses” as they plan for reopening and bringing employees back to work. The guidance is not comprehensive and is intended to supplement resources from other federal, state and local agencies, including, specifically, the White House’s Guidance for Opening up America Again (the White House Guidance). Here are some of the key takeaways from OSHA’s new guidance: Planning for Reopening Employers should monitor federal, state and local resources to assess when and how to reopen their businesses. This includes understanding how their community is progressing through the reopening phases identified in…
Retirement Plan Developments DOL Releases Final Regulations for Electronic Delivery of Retirement Plan Disclosures On May 27, 2020, the U.S. Department of Labor (DOL) released final regulations addressing the electronic delivery of retirement plan disclosures. The final regulations are similar to the proposed regulations the DOL released in October 2019, but create an additional safe harbor method for electronic disclosure, called the “notice and access” safe harbor, which applies to documents the plan administrator is required to furnish. The safe harbor allows electronic disclosures to be provided to any covered individual who provides an email address, including employer-provided email addresses,…