Quick Hits - January 27, 2021 - American Society of Employers - ASE Staff

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Quick Hits - January 27, 2021

DOL Wage and Hour clarifies telehealth visit with FMLA requirements:  FAB (No. 2020-08), Telemedicine and Serious Health Conditions under the Family and Medical Leave Act FMLA) outlines the circumstances under which telemedicine counts as an “in-person” visit under the FMLA. This definition is important, because an employee may be unable to establish that he or she has a “serious health condition” in the absence of an in-person visit with a medical provider. Specifically, the FMLA defines “serious health condition” as an “illness, injury, impairment, or physical or mental condition that involves inpatient care…or continuing treatment by a health care provider.” See 29 C.F.R. §§ 825.102, 113-115. The regulations further define “treatment by a health care provider” to mean “an in-person visit to a health care provider.” See 29 C.F.R. § 825.115(a)(3).  Source: Jackson Lewis 1/13/21

Ohio makes changes to its discrimination laws: Governor Mike DeWine signed the Employment Uniformity Act into law, amending the Ohio Civil Rights Act.  First, the Act amends the deadline for an employee to make a discrimination claim under Ohio law by creating a uniform two-year statute of limitations for all workplace discrimination claims. Previously it was up to six years depending on the issue. Second, the Act requires employees to first file their workplace discrimination claims with the Ohio Civil Rights Commission (OCRC) before filing a lawsuit in court.  Next, the Act largely eliminates the potential for personal liability of managers. With respect to sexual harassment claims, the Act makes clear that employers have a defense against hostile work environment sexual harassment claims if the employer can prove it exercised reasonable care to prevent or promptly correct any sexually harassing behavior and the employee alleging the claim unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer.  Finally, the Act clarifies that the procedural prerequisites to file an age discrimination claim align with other types of discrimination claims in Ohio (must file with OCRC first).  Source: Frost Brown Todd LLC 1/15/21

U.S. 6th Circuit Court of Appeals does not allow agreement to shorten EEO claims timelines: Even though an Ohio air freshener manufacturer had employees sign off on a six-month limitations period for taking the company to court, the Sixth Circuit made clear in a precedential decision that this language has no bearing on an axed worker's timeframe for bringing claims under the Americans with Disabilities Act and Age Discrimination in Employment Act. The court similarly held in Logan v. MGM Grand Detroit Casino in mid-2019 that workers can't sign away their right to Title VII's deadlines and said Friday that same concept applies to its sister anti-discrimination statutes.  "Reviewing Logan with the ADA and ADEA in mind, we conclude that the considerations that guided our decision in that case apply with equal force in the ADA and ADEA contexts," the panel said.  The case is Thompson v. Fresh Products LLC et al., No: 20-3060 (U.S. Appeals Court for the Sixth Circuit, 1/15/21).  Source:  Law360 1/19/21

IRS provides Notice 2021-11 on payback of deferred payroll taxes:  The Internal Revenue Service released Notice 2021-11 addressing how employers who elected to defer certain employees’ taxes can withhold and pay the deferred taxes throughout 2021 instead of just the first four months of the year.  In response to a presidential memorandum signed Aug. 8, 2020, Notice 2020-65 was issued on Aug. 28, 2020, giving employers the option to defer certain employees’ Social Security taxes from Sept. 1, 2020, to Dec. 31, 2020. The taxes are calculated at 6.2% of employees’ wages.  Any taxes deferred under Notice 2020-65 are withheld and paid ratably from employee wages between Jan. 1, 2021, until April 30, 2021. However, the Consolidated Appropriations Act, 2021, signed into law December 27, extended the period for the entire year − from Jan. 1, 2021, through Dec. 31, 2021. Notice 2021-11 makes changes to Notice 2020-65 to reflect this extended period. Payments made by Jan. 3, 2022, will be considered timely because Dec. 31, 2021, is a legal holiday. Penalties, interest, and additions to tax will now start to apply on Jan. 1, 2022, for any unpaid balances.  Source:  IRS 1/19/21

COVID related lawsuits expected to increase:  In 2020, coronavirus spurred at least 1,005 workplace lawsuits, according to Seyfarth Shaw LLP's January 5 Workplace Class Action Litigation Report. The firm expects "even more" pandemic-related lawsuits in 2021 as businesses resume operations. Terminations were the most common subject of COVID-19 workplace litigation; such allegations were made more than three times as often as the next most frequently alleged claim. Broken down by industry, health care employers saw the most, at 198 lawsuits, followed by business services (128) and manufacturing (99).  In addition, it appears that WARN Act lawsuits will be on the rise with temporary layoffs becoming permanent.  Source:  HR Dive 1/13/21

U.S. Senators asking for EEOC to study AI in hiring processes:  Ten U.S. senators are asking the U.S. Equal Employment Opportunity Commission to hone in on employers’ use of artificial intelligence (“AI”), machine-learning, and other hiring technologies that may result in discrimination.  The group of senators—Michael Bennet (D-CO), Cory Booker (D-NJ), Sherrod Brown (D-OH), Elizabeth Warren (D-MA), Catherine Cortez Masto (D-NV), Chris Coons (D-DE), Ron Wyden (D-OR), Tina Smith (D-MN), Chris Van Hollen (D-MD), and Jeff Merkley (D-OR)—jointly penned a December 8, 2020 letter to EEOC Chair Janet Dhillon. The letter urges that EEOC is responsible for combatting discrimination resulting from the use of hiring and other employment technologies. The senators voice concern about a number of hiring technologies, including: “[T]ools used in the employee selection process to manage and screen candidates after they apply for a job”; “[N]ew modes of assessment, such as gamified assessments or video interviews that use machine-learning models to evaluate candidates”; “[G]eneral intelligence or personality tests”; and “[M]odern applicant tracking systems.” The lawmakers recognize that “hiring technologies can sometimes reduce the role of individual hiring managers’ biases,” but that “they can also reproduce and deepen systemic patterns of discrimination reflected in today’s workforce data.”  Source: Hunton Andrews Kurth LLP 1/19/21

England is definitely not USA:  Biased language in some job advertisements in Britain deter as many as one in two women from applying, a new study shows, amid a push to attract more women to male-dominated sectors.  Openreach, which operates most of the country’s broadband network, found that women’s interest in applying for an engineering job increased by more than 200% when changes were made to language in an advertisement.  The company asked 2,000 women about two different advertisements for the same job, and found they were put off by macho phrases like “being on the road in your van” and “getting your hands dirty” and mention of climbing a telegraph pole.  “We were amazed to see just how much of a difference language makes,” said Kevin Brady, human resources director for Openreach, which is seeking to recruit women for 500 out of 2,500 new engineering jobs this year – 10 times historic levels. The new advertisement also listed skills in a more neutral language, stipulating that applicants should not be afraid of heights and be good at getting things done.  Just over 3% of Openreach engineers are women compared to 11% of engineers nationally.  With a quarter of respondents, who were aged 18 to 55, saying they still believed certain roles were more suited to men, the researchers said the findings had implications for many other industries.  Source:  Reuters 1/12/21

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