Federal Employment Law Update for Early 2021

While there have been many changes and proposed changes to federal employment laws in the first five months of 2021, here are six which all business owners should know.  

1. DOL withdraws Trump-era rule that made it easier to classify gig economy workers as independent contractors instead of employees. On May 5, 2021, the Department of Labor announced the withdrawal of the “Independent Contractor Rule,” which made it harder for gig workers to show they are employees for purposes of overtime and minimum wage. The withdrawal of the rule causes some uncertainty for gig economy businesses like Uber and Lyft as it revives the employee-versus-contractor debate that these workers and businesses thought had ended.

2. The American Families Plan proposes 12 weeks of federal paid leave. President Biden’s infrastructure plan, announced on April 28, includes a proposal that would establish the first national permanent federal paid leave program. This program would provide workers paid leave for their own health issues, parental purposes or to seek care for sick family members. The amount of allowed paid leave per year would grow over the next decade to 12 weeks by 2031.

3. Executive Order increases federal contractor employees’ minimum wage to $15 in 2022. The Order, issued on April 27, further provides that as of January 1, 2023, the Secretary of Labor will determine a new minimum wage (which cannot be less than the then current wage) which will reflect increases in the Consumer Price Index rounded to the nearest $0.05.

4. DOL issues guidance on employers’ obligation to provide temporary COBRA premium assistance. As of April 7, the Department of Labor released guidance, Frequently Asked Questions, and Model Notices to explain how employers must comply with the new COBRA assistance provisions which provide for 100% premium assistance to certain qualified beneficiaries for continuation coverage under COBRA. This benefit is in effect from April 1 to September 30, 2021.

5. ADA website accessibility lawsuits are trimmed. On April 7, the Eleventh Circuit Court of Appeals in Gil v. Winn-Dixie Stores, Inc., held that a website is not a “place of public accommodation” under the ADA and the plaintiff’s inability to access the website using screen reader software did not violate the ADA. While the plaintiff was not an employee, the 67-page decision will be helpful to companies facing allegations that their website violates disability-discrimination laws including as applied to employees or applicants for employment.

6. The American Rescue Plan provides immediate tax credits to businesses that offer employees paid sick and family leave. On March 11, President Biden signed off on the plan which allows employers, who voluntarily participate, to continue to provide employees emergency paid sick leave (EPSL) and expanded family and medical leave (EFML) from April 1 through September 30, 2021. The plan expands the reasons for EPSL to include getting a COVID-19 vaccine, recovering from the vaccine, and awaiting the results of a diagnosis or test following close contact with a person with COVID-19 or at the employer’s request, and it expands the reasons for EFML to include all of the reasons for EPSL essentially extending the length of paid leave time for EPSL reasons to 12 weeks but at a reduced rate.