The Title IX regulations that went into effect in August 2020 significantly narrowed the scope of conduct that the United States Department of Education Office of Civil Rights (“OCR”) defined as violating Title IX, the broad law prohibiting sex or gender discrimination in education.  These regulations have the force of law.

Carved out of Title IX coverage was potentially a vast amount of sexual misconduct that could have detrimental impacts on the campus work and academic environment.  The new regulations excluded from Title IX protection off-campus conduct, conduct occurring in study abroad programs, and sexual harassment of employees under Title VII which does not satisfy the new narrower definition of Title IX sexual harassment.

This remarkable erosion of coverage left colleges and universities analyzing whether they could, should, must, or wanted to address this excluded sexual misconduct conduct.  Just as importantly, many schools were left asking how they could lawfully do so without violating the Title IX regulations.

On January 15, 2021, the OCR published “Part 1: Questions and Answers Regarding the Department’s Title IX Regulations” which helps to provide some guidance on these questions.

https://www2.ed.gov/about/offices/list/ocr/docs/qa-titleix-part1-20210115.pdf?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term

Through the guidance, OCR answers some of the questions schools have been grappling with as follows:

Q.  May we address sexual misconduct falling outside of Title IX?

A.  Yes. OCR explains that Title IX is not the exclusive remedy for schools to address sexual misconduct and makes clear that schools are required to dismiss non-Title IX sexual misconduct only “for the purposes of Title IX” proceedings.  OCR explained that the use of other disciplinary processes to address such conduct is indeed appropriate.

Q.  Must we?

A.  It depends. For some conduct that is unlawful under other non-discrimination laws like Title VII, schools must response and must have a complaint and resolution process.  For other conduct, even where there is no legal requirement, schools may have a mission-based rationale for responding.

Q.  Should we? Shall we?

A.  The answers to these questions will come from an institutional analysis, driven by legal obligations, culture, history and mission. This OCR guidance leaves the door open for institutions to engage in this type of analysis in setting up its systems to address non-Title IX sexual misconduct.  Interestingly, the OCR expressly approved of, but did not require, the use of parallel procedures that correspond with a school’s Title IX process.

After this guidance, schools can rest assured that they can address non-Title IX sexual misconduct through other processes, that they can lawfully make those processes consistent with their Title IX processes.

One final, but important, note: schools would be well advised to state the purpose of their parallel processes so that it is clear that their purpose is not to interfere with Title IX rights.  Such language could help avoid or rebut a Title IX retaliation claim under 34 C.F.R. 106.71(a).

If you would like guidance on Title IX, please contact Pam Connelly at pconnelly@smgglaw.com.

Contributing Authors:  Jean E. Novak

The Second Federal Stimulus

The second stimulus package passed by Congress in late December 2020 is over 5000 pages long.  Among other things, it contains provisions relating to the availability and amount of unemployment compensation for out of work employees, as well as many tax related provisions.  However, for employers, second stimulus package is most remarkable for what it does not contain.

First, despite much public discourse on the topic, it contains no protections from liability for employers or businesses.

Second, as explained more fully below, the second stimulus package did not create any new COVID-19 related paid leave provisions, leaving the paid leave programs required in 2020 to expire December 31, 2020.

The Expiration of FFCRA Mandatory Paid Leave Requirements, and The Opportunity to Continue the FFCRA Programs until March 31, 2021

By way of background, the first federal stimulus legislation in response to COVID-19, titled the Families First Coronavirus Response Act (“FFCRA”), was signed into law by President Trump on March 18, 2020.  FFCRA was effective on April 1, 2020 and contained a broad array of relief that significantly impacted small and mid-size employers.

Of particular impact for employers were the FFCRA’ required COVID-19 paid leave requirements.  FFCRA created the right to two types of paid leave:  a temporary, limited expansion of the Family & Medical Leave Act of 1993 (“the FMLA expansion”); and emergency paid sick leave. With respect to these paid leave provisions, FFCRA applied only to employers with fewer than 500 employees and most public agencies with greater than one employee.  However, under the express terms of the FFCRA, these paid leave provisions were designed to expire on December 31, 2020.

When the second federal stimulus package was being negotiated, there was significant speculation as to whether it would create new FFCRA paid leave provisions.  However, a review of the late December 2020 legislation revealed that Congress did not do so.  It only permitted employers to continue the 2020 FFCRA leave programs, should they so choose, until March 31, 2021 and provided some tax benefits for doing so.  However, the caps on the total amount of leave available to employees was not augmented.  As such, in the absence of other state or local laws that adopted the FFCRA, employers are not required to continue these programs in 2021.

The City of Pittsburgh Paid Leave Requirements

With the FFCRA leave provisions expiring at the end of 2020, the City of Pittsburgh passed an ordinance, Temporary Emergency COVID-19 Paid Sick Leave (Ordinance).  The Ordinance requires employers in Pittsburgh with 50 or more employees to provide paid sick leave to employees for reasons related to COVID-19.  This COVID sick leave is in addition to any paid sick time under (a) employer policies; and/or (b) Pittsburgh’s Paid Sick Days Act.  The major provisions of the Ordinance are as follows:

As of January 1, 2021, organizations with 50 or more employees working within the City, normally working in the City but teleworking due to COVID-19, or working from multiple locations but working at least 51% of the time in the City, are covered by the Ordinance.  The COVID-19 paid sick time becomes immediately available to any employee who has been employed for at least 90 days and whose need for sick time is directly related to COVID-19.  The “accrual” of sick time under Pittsburgh’s Paid Sick Days Act is suspended for sick time related to COVID-19. (All non-COVID-19 related requests and accrual remain covered by Pittsburgh’s Paid Sick Days Act.)

Employees are entitled to us the COVID-19 Sick Time for any of the following reasons:

How much paid time off do employees receive? Employees who work 40 hours or more per week, must be provided at least 80 hours of paid COVID-19 Sick Time. Employees who work fewer than 40 hours per week are entitled to paid COVID-19 Sick Time equal to the amount of time the employee usually is scheduled to work in a 14-day period. For employees with fluctuating schedules, employers are to use the average number of hours the employee was scheduled to work over the prior 90 days of work, “including hours for which the [e]mployee took leave of any type.”

Employers are not permitted to change their sick leave policies to circumvent providing both their regular sick days and paid COVID-19 Sick Time.  Additionally, employers cannot require that employees use other available sick time or paid time off before using paid COVID-19 Sick Time.

One looming question is whether employers that voluntarily continue to provide paid leave under the FFCRA are in compliance with the Ordinance.  That’s because the Ordinance states,

To the extent that federal or state laws require employers to provide paid leave or paid sick time related to COVID-19, Employers may substitute leave under the federal or state law for its obligations under this ordinance to the extent they coincide and the relevant federal or state law permits such concurrent use of paid leave.

As of January 1, 2021, federal law does not require employers to provide paid leave or paid sick time for COVID-19 related issues.  Employers may voluntarily continue to provide such leave.  Additionally, it seems that voluntarily providing extended FMLA leave to parents while children’s schools are closed would not qualify as a substitution for sick leave required by the Ordinance because expanded FMLA is not related to COVID-19 illness or exposure.

Pittsburgh’s new paid sick leave will be available until the earlier of either Pennsylvania or Pittsburgh ending its COVID-19 emergency disaster declaration.

CONCLUSION

Paid sick leave is an evolving area, and we expect this trend to continue into 2021.  We will continue to monitor future developments.

For further assistance, please contact Pam Connelly at pconnelly@smgglaw.com, Jean Novak at jnovak@smgglaw.com or Gerri Sperling at gsperling@smgglaw.com.

Year after year, the issue of sexual misconduct in violation of Title IX on college campuses continues to confront higher education leaders.  The topic is one on which innumerable individuals and special interest groups have strong opinions and agendas.  Athletics, commonly called the “front porch” to universities, can often be at the center of the Title IX storm.  Among other high-profile issues, there have been reports of college athletes transferring to other schools and returning to competition even after being expelled, convicted or otherwise disciplined for sexual misconduct.

In response, in April 2020, the National College Athletic Association (NCAA) expanded its sexual violence policy to require that all incoming, current and transfer college athletes disclose annually to their school whether they have been subject to an investigation, discipline through a Title IX proceeding, or a criminal conviction for sexual, interpersonal or other acts of violence. Failure to accurately and fully disclose, could result in penalties for the athlete, including a loss of athletics eligibility.

It was recently reported that in October 2020 the NCAA quietly made the controversial decision to delay implementation of this policy until the 2022-2023 academic year:

https://www.politico.com/news/2020/11/18/ncaa-sexual-violence-policy-delay-437106

This means that, until the fall of 2022, athletes might not face penalties if they do not disclose past accusations or discipline, and schools will not be required to create processes to track such misconduct.  The NCAA stated that the decision to delay implementation was based on challenges related to the pandemic and the new Title IX federal regulations that went into effect in August 2020.  Layered on top of these justifications is the speculation that President-elect Biden may at some point roll back or amend the new regulations.  Advocates for victims of campus assault have reacted to the NCAA decision with disappointment.

Though all of this, institutions of higher learning must remain steadfast in their concurrent commitments to both an environment free from sexual misconduct, and equitable, reliable processes for all.  While patience can be difficult, there is undoubtedly wisdom in allowing time to build a good process that fulfills these mutually beneficial commitments.  Colleges and universities are well advised to use the time to develop robust and equitable processes surrounding the reporting of misconduct.

If you would like guidance on Title IX, please contact Pam Connelly at pconnelly@smgglaw.com.

When the Title IX changes come, we are prepared to help.

As most schools know, it has been widely reported that U.S. Department of Education (DOE) is preparing to release its final Title IX regulations. The draft proposed regulations, published in November 2018, resulted in the submission of thousands of public comments.  If the final regulations contain the more controversial aspects of the proposed regulations, such as the requirements of a hearing and live cross-examination which would be new to higher education, there may be significant changes required to your school’s policies, procedures, and practices.  Such changes should be arrived at thoughtfully, with a view towards legal compliance across the myriad of applicable state and federal laws, as well as your school’s mission and culture.

Strassburger McKenna Gutnick and Gefsky is prepared to help you respond as soon as the final regulations are published.  We have formed a Title IX Task Force consisting of a core group of attorneys who are already at work preparing for the new regulations.  Our goal is to ensure that our clients are provided with excellent advice and assistance on issues such as policy development, updates and revisions to processes and practices, litigation defense, and training and investigation resources.  Our attorneys have represented institutions of learning for decades, and have deep experience in the design, implementation, and defense of effective and compliant Title IX systems.  Strassburger McKenna Gutnick and Gefsky can put that experience to work for your school.

When the final regulations are published, look to Strassburger McKenna Gutnick and Gefsky to provide tailored, mission-driven and institution-specific advice.  Keep alert for information about our free webinars on the final regulations.  Contact Pam Connelly at pconnelly@smgglaw.com or Kathy Clark at kclark@smgglaw.com to learn more.   Learn about our education law practice here:  https://www.smgglaw.com/practice-area/education

The Families First Coronavirus Response Act (“FFCRA”) now requires certain employers to provide employees with paid sick leave and expanded family and medical leave for specific reasons related to the COVID-19 pandemic.

In general, private employers with fewer than 500 employees and most government employers must offer two new benefits: paid family leave and paid emergency sick leave tied to circumstances we’ll outline in the next section.

To offset the costs of these leave requirements, the FFCRA provides that non-governmental employers will receive a tax credit quarterly equal to 100% of the qualified wages paid for those benefits. The rules associated with the tax credit are examined at the end of this article.

Limited Expanded FMLA Benefits

The expanded FMLA benefits are available only for employees who need to stay home to care for a child due to a COVID-19 related school or care closure and cannot be used if the employee can work from home remotely. Employers are required to provide all employees who have been employed for 30 days or more, 12 weeks of protected leave for such absences, subject to requirements and limitations set forth in the law and guidance from the federal Department of Labor (“DOL”). Employers with fewer than 25 employees may seek an exemption from the law under limited circumstances.

Under this limited FMLA expansion, after an initial 10 day period that is unpaid under the expanded FMLA, employers must provide paid leave for 12 weeks at a rate of pay equal to two-thirds (2/3) of the employee’s regular wages, subject to  caps of $200 per day and $10,000 per year total. For the first 10 days of qualified absences, the employee can choose the Emergency Sick Leave benefit described below or use other paid time off. The employer cannot require that the employee use accrued paid time off.

Paid Emergency Sick Leave Benefit

FFCRA also requires employers with fewer than 500 employees to provide two weeks (10 working days or 80 hours) paid leave for those unable to work because of COVID-19 related absences. Employees qualify if they are:

  1. Subject to a federal, state or local quarantine order
  2. Advised by a health care provider to self-quarantine
  3. Experiencing COVID-19 symptoms and need medical treatment
  4. Caring for a child or individual who is sick
  5. Caring for a child whose school or daycare is closed as a result of COVID-19

Based on a temporary federal rule published April 1, 2020, Governor Wolf’s current stay-at-home order qualifies as a state “quarantine or isolation order” that will authorize the payment of sick leave for non-essential workers who cannot work or telework.

The two-week emergency paid sick leave is available immediately, regardless of the employee’s tenure, and must be used by the end of the year 2020. It does not carry over to subsequent years and is not required to be paid to departing employees if unused. Finally, it is available to re-hired employees if the employees had worked for at least 30 days prior to being laid off.

FFCRA permits the Secretary of Labor to grant exceptions to the expanded Family and Medical Leave for employers with fewer than 50 employees when the requirements potentially jeopardize the long-term viability of the business. In addition, health care provider and first responder employers may elect to exclude their employees from application of this rule.

Effective April 1, 2020, employers are required to post information regarding their employees’ rights under FFCRA.  Here is the employee poster: https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf

Employer and Self-Employed Tax Credits

Employers and those who are self-employed can receive a refundable tax credit against the employer’s share of FICA tax (6.2% of FICA wages) equal to 100% of the “qualified sick leave wages” and “required paid family leave” wages paid by the employer. However, the employer will be denied an income tax deduction for the “wages” used to generate the tax credit. The CARES Act Section 3606 authorizes the Treasury to give employers an advance tax credit rather than having to wait to be reimbursed on the back end. The IRS will likely issue administrative guidance on this process in the coming weeks.

A refundable payroll tax credit is available for the employer if: a) the employer had to fully or partially shut down; or b) gross receipts for the quarter declined by more than 50% when compared to the same quarter in the in the prior year. The credit is available for 50% of “qualified wages” paid from March 13, 2020 through December 31, 2020 (only the first $10,000 of wages per employee is counted for purposes of the credit).  Only wages to paid laid-off employees are treated as “qualified wages.” “Qualified sick leave wages” and “required paid family leave wages” are not eligible for the credit.  An employee’s share of health care benefits counts as “wages” for purposes of the credit. Small employers (100 or fewer employees) do not have to lay-off employees to claim the credit. The credit is not available if the employer receives a Paycheck Protection Program loan from the SBA.  The credit for a quarter expires once gross receipts exceed 80% of the comparable quarter of 2019. https://home.treasury.gov/index.php/news/press-releases/sm962

Finally, a cash flow deferral is available for the employer’s share of social security taxes (6.2%) from wages that were paid from March 27, 2020 through December 31, 2020. The provision requires that the deferred employment tax be paid back over the following two years, with half of the amount required to be paid by December 31, 2021 and the other half by December 31, 2022. Similar tax deferral benefits are offered to self-employed individuals. This deferral is not available if the employer receives a Paycheck Protection Program loan from the SBA and has a portion of the loan forgiven.

Strassburger McKenna Gutnick & Gefsky attorneys have thoroughly reviewed the Acts and provisions outlined in this summary. We are available to advise clients on the impact they may have on their businesses.

For more specific information, please contact Pam Connelly at pconnelly@smgglaw.com, Jean Novak at jnovak@smgglaw.com  or Gerri Sperling at gsperling@smgglaw.com.

The summary above does not constitute legal advice. It is to be used for general informational purposes only. We fully expect that many of the provisions discussed above will be modified by future law changes and administrative guidance. You should refrain from acting on the basis of any content included in this alert without seeking legal or other professional advice.

The Families First Coronavirus Response Act (“FFCRA”) was signed into law by President Trump on March 18, 2020. FFCRA is effective on April 1, 2020, and its requirements expire on December 31, 2020.  It contains a broad array of relief that will significantly impact small and mid-size employers, and most public employers of all sizes, including:

  1. COVID-19-related paid leave requirements (pg. 1)
  2. Unemployment compensation augmentation (pg. 5)
  3. Free COVID-19 testing (pg. 5)

Paid Leave Requirements

As more fully set forth below, FFCRA provides for two types of new paid leave requirements for small and mid-sized employers and most public employers: a temporary, limited expansion (pg. 1) of the Family & Medical Leave Act of 1993 (“FMLA”); and emergency paid sick leave (pg. 2). With respect to these paid leave provisions, FFCRA applies only to employers with fewer than 500 employees and most public agencies with greater than one employee.

Note: Public employers covered by Title II of the Family and Medical Leave Act are not covered by the expanded FMLA provision of the FFCRA. The Paid Sick Leave provision does apply.  FAQs for public employees will be forthcoming from the DOL.

There are limited exceptions to the paid leave requirements discussed below, such as for small employers under certain circumstances, health care providers, and first responders. In addition, to offset the costs of these leave requirements, the FFCRA provides that non-governmental employers will receive a tax credit quarterly equal to 100% of qualified sick leave wages paid under the FMLA expansion and the Emergency Paid Sick Leave Act, credited against the employer share of Social Security taxes.

This memo supplements a previous memo on the topic as it includes analysis on how to count employees (pg. 3); the impact of the FFCRA on collective bargaining agreements (pg. 4); and the required FFCRA notice to employees (pg. 4).

Temporary, Limited Expansion of the FMLA

In general, the FMLA applies only to employers with at least 50 employees. It also only applies where an employee has worked for a qualifying employer for one year and meets other requirements, such as having worked a certain number of hours in a defined time period. In addition, the FMLA guarantees only unpaid leave.

The FFCRA changes these familiar FMLA parameters, at least with respect to “qualified absences” through the end of 2020, in several significant ways. Before discussing these changes, it is important to note that a “qualifying absence” under the FFCRA exists where an employee cannot work (even remotely) due to the need to care for a child if the child’s school or care provider has been closed due to a public health emergency. Leave for an employee’s own COVID-19 illness is not a “qualifying absence.” In addition, the employee must affirm that there is not another suitable adult available to care for the child. Thus, the FMLA expansion described below applies only to a limited class of childcare-related leaves caused by a public health emergency.

The first significant way that the FFCRA alters the FMLA for “qualified absences” is that it applies to employers with less than 500 employees and government employers with more than one employee.  Second, under the FFCRA, such employers are required to provide employees who have been employed 30 days (instead of the traditional one year) with 12 weeks of protected leave for qualified absences. Third, unlike the FMLA, there is no requirement that a minimum number of hours have been worked.

In the final significant change from the FMLA discussed here, the FFCRA requires some paid leave.  Specifically, after ten days of unpaid leave, the remainder of the qualifying absence, up to 12 weeks, must be partially paid at a rate of 2/3 the employee’s regular wage rate. The cap on this expanded FMLA leave pay is $200/day and $10,000 total. During the first ten days, the employee can choose to use the Emergency Paid Sick Leave described below, or other available paid time off. However, the employer cannot require the use of accrued paid time off. The FFCRA further provides that the wages paid as leave under the FMLA expansion are not taken into account for Social Security taxes.

In addition to the changes described above, many familiar FMLA concepts apply to this new leave for a qualifying absence. Employees are only entitled to a total of 12 weeks per year of FMLA leave, including weeks already used as regular FMLA leave.  Discrimination and retaliation are prohibited. The available remedies, penalties, and damages are those available under the FMLA. Post-leave position restoration is required. However, employers with fewer than 25 employees can be exempted from this requirement where the position no longer exists due to economic conditions caused by the public health emergency, the employer makes reasonable efforts to restore the employee at the end of the leave, and the employer attempts to reach the employee should equivalent positions come open during the year after the leave started.

With respect to further exceptions, the FFCRA provides that the Secretary of Labor may grant exceptions for businesses with fewer than 50 employees where the requirements would jeopardize the viability of the business as a going concern. On April 1, 2020, the DOL in a temporary rule setting forth detailed requirements for qualifying for an exception.  Finally, health care providers and emergency responders, both broadly defined, may elect to be excluded from this FMLA expansion.

Emergency Paid Sick Leave

The Emergency Paid Sick Leave Act is a new statutory obligation requiring all employers with fewer than 500 employees to provide employees up to two weeks (ten working days) paid leave for qualifying COVID-19 related absences. Qualifying COVID-19 related absences arise where:

  1. the employee is subject to a federal, state or local quarantine or isolation order related to COVID-19;
  2. a health care provider has advised the employee to self-quarantine due to COVID-19 concerns;
  3. the employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
  4. the employee is caring for a person satisfies #1 or #2 above;
  5. the employee is caring for a child whose school or care provider is closed due to COVID-19; or
  6. the employee has substantially similar condition as specified by the US Secretary of Health and Human Services.

The two-week paid leave:

  1. is available immediately, regardless of the employee’s tenure at the employer;
  2. must be used by the end of the year 2020;
  3. does not carry over to subsequent years; and
  4. is not required to be paid out to departing employees, if unused.

Full time employees are eligible for up to 80 hours paid leave. Part time employees are eligible for a pro rata number of hours based on hours worked in the past six months. In addition, there are varying caps and rates of pay for this paid leave. For an employee’s absence related to the employee’s own care, the employee receives the greater of their regular rate of pay or minimum wage subject to a cap of $511/day or $5,111 total.  For an employee’s absence related to the care of others, the employee is entitled to receive two thirds of their regular pay with a cap of $200/day or $2,000 total.

The DOL guidelines provide more detailed instruction on this pay calculation for specific scenarios, such as calculating part time pay and establishing a regular rate of pay. The guidance also includes a requirement that normal overtime be included in the calculations. The guidance can be found here.

Employees may choose to use this paid sick leave first, before exhausting existing any other paid time off benefits. Employers may not require employees to use accrued leave before using the emergency sick leave in the Act. This leave is an addition to existing rights under law, contract, and employer policy, and does not diminish any employee’s right to paid leave.

As with the FMLA extension discussed above, the FFCRA permits the Secretary of Labor to grant exceptions for businesses with fewer than 50 employees where the requirements would jeopardize the viability of the business as a going concern. On April 1, 2020, the DOL in a temporary rule setting forth detailed requirements for qualifying for an exception. Finally, health care provider and first responder employers, both broadly defined, may elect to exclude their employees from application of this rule.

Discrimination and retaliation for taking paid sick leave or reporting complaints concerning the Act are prohibited. The Department of Labor published a poster detailing the Act’s requirements, which employers are required to post which can be found here:

https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf

Guidance on How to Count Employees

The Department of Labor issued guidance on the question of how to count employees to determine whether the FFCRA applies. The guidance provides that the count of employees must:

  1. be calculated on the day an employee seeks to take leave;
  2. include all full and part time employees within the United States and its territories;
  3. include all employees on leave;
  4. include all temporary employees who are jointly employed with another company; and
  5. include day laborers supplied by a temp agency.

Independent contractors are not to be counted.

Typically, a corporation is considered one employer even where it has multiple sites. With respect to related corporations or other entities, the DOL guidance provides that, generally, if an entity has an ownership interest in another entity, they are considered separate employers. However, there is an important exception where the entities are “joint employers” under the FLSA. Under the FLSA joint employer test, key factors include whether the related company:

  1. has the power to hire or fire employees;
  2. actually exercises substantial control over terms or conditions of employment or supervisory authority;
  3. determines rate of pay and method of payment; and/or
  4. maintains employee records.

This is a fact intensive analysis. If two entities are joint employers applying these factors, all employees must be counted with respect to both the new emergency sick leave and the extended FMLA paid leave.  In addition, the DOL guidance also adopted the FMLA’s “integrated employer” test to determine whether entities should be separate or combined for employee counting purposes with respect to the extended FMLA paid leave only. Factors under the FMLA integrated employer test include: common management, interrelation between operations, centralized control of labor relations and degree of common control/ownership. This too is a factual analysis. See 29 C.F.R. 825.104(c).

Interplay of the FFCRA and Collective Bargaining Agreements

As an initial matter, the FFCRA provides no exemptions or exclusions for employers who are parties to a collective bargaining agreement. The FFCRA paid leave requirements under the both the FMLA extension and the Emergency Paid Sick Leave Act apply even where collective bargaining agreements are present.

The only FFCRA provisions specific to collective bargaining agreements provide that, for employers who are signatories to multi-employer bargaining agreements, such employers can satisfy their paid leave obligations by making contributions to a multi-employer fund, plan or program based on the hours of paid sick time each of its employees is entitled to under the Act, provided that such fund, plan or program enables employees to secure pay from such fund, plan or program based on hours worked under the collective bargaining agreement. This is permitted only where it is consistent with the collective bargaining agreement. This is not an exception to the paid leave obligations. It is an optional, different delivery mechanism for the employer’s paid leave payments.

Interpreting the existing statute without the benefit of future expected regulations, here are some anticipated questions and answers:

Q: The FFCRA’s extended FMLA leave provisions provide paid leave for those caring for children whose school or care facility is closed due to a national emergency, after an initial unpaid ten-day period. Our contract requires paid leave to be exhausted first whenever leave is taken. Can I enforce the contract and require the employee to exhaust paid leave during the initial unpaid ten-day period?

A.  No. Even if a collective bargaining agreement contains such a requirement, the FFCRA provide no exception.

Q: With respect to the two weeks paid leave under the Emergency Paid Sick Leave Act, the new law says that an employee may choose to use this paid sick leave first, before exhausting existing any other paid time off benefits. Our contract requires accrued paid leave to be exhausted first. Can I enforce the contract?

A: No. Employers may not require employees to use accrued leave first, even in the presence of a contract.

In summary, the paid leave provisions of the FFCRA are additions to existing rights under law, collective bargaining agreements, contracts, and employer policies. They not diminish any employee’s right to paid leave.  Where a multi-employer collective bargaining agreement exists, an employer may use a payment delivery mechanism through contributing to an employer fund, plan or program based on the hours of paid sick time each of its employees is entitled to under the Act.

The Required FFCRA Notice to Employees

On March 25, 2020, the DOL published a required FFCRA notice that employers must provide employees. Employers are required to post the notice at physical work sites when permitted by local order and state law by or on April 1, 2020. During the pandemic, employers may satisfy the notice requirements of the Act by emailing or direct mailing the notice to employees or posting the notice on an employee information internal or external website. Because the Act’s requirements only apply to current employees, the notice does not have to be shared with laid-off individuals or prospective employees. The poster can be found here.

Expanded Eligibility and Support for Unemployment Compensation Benefits

Under the FFCRA, the federal government will provide up to one billion dollars to the states for activities relating to unemployment compensation. Half of that amount is to be allocated to administrative costs, and half for emergency grants to states that experience a 10% increase in unemployment compared to the same quarter of the previous year. To be eligible, states must amend their laws to ease eligibility requirements for unemployment benefits such as work search requirements and waiting periods. The Pennsylvania Senate recently passed such legislation. The grants can be used to support extending unemployment compensation benefits an additional 26 weeks after the initial 26 weeks. Additional state and federal legislation related to unemployment compensation has passed and is expected in the near future.

COVID-19 testing covered

The FFCRA requires that group health plans provide free COVID-10 testing, including the products and services needed for diagnostic testing.

Employer’s and Self-Employed Person’s Tax Credits to Help Offset the Costs

Sections 7001 through Section 7004 of the FFCRA provide that the employer (as well as self-employed persons) can receive a refundable tax credit against the employer’s share of FICA tax (the 6.2% of FICA wages) equal to 100% of the “qualified sick leave wages” and “required paid family leave” wages paid by the employer. However, the employer will be denied an income tax deduction for the “wages” used to generate the tax credit.

CONCLUSION

This summary covers some of the highlights of the FFCRA that will have significant impact on small and mid-size employers. Based on media reports, future legislation in response to COVID-19 may contain amendments or compliments to FFCRA, particularly the unemployment compensation and the paid leave provisions. We will continue to monitor future developments.

For further assistance, please contact Pam Connelly at pconnelly@smgglaw.com, Jean Novak at jnovak@smgglaw.com or Gerri Sperling at gsperling@smgglaw.com.

 

The summary above does not constitute legal advice. It is to be used for general informational purposes only. We fully expect that many of the provisions discussed above will be modified by future law changes and administrative guidance. You should refrain from acting on the basis of any content included in this alert without seeking legal or other professional advice.

In the past decade, the number of sexual harassment and violence complaints in American K-12 public schools have increased fifteen fold, according to the U.S. Department of Education, Office for Civil Rights (“OCR”).

Faced with this troubling data, on February 26, 2020 the U.S. Secretary of Education Betsy DeVos announced a new OCR initiative to enhance the enforcement of Title IX in K-12 public schools. See the Department of Education’s full press release here. This initiative will focus not just on sexual assault, but also sexual harassment (collectively “sexual misconduct”). It will address student-on-student, as well as adult-on-student, sexual misconduct.

Title IX is a federal law that prohibits sex discrimination in educational programs or activities that accept federal funding. As a result, although the initiative targets public schools, the resulting Title IX standards and concepts will apply to all K-12 schools that accept federal funds.

Based on the announcement, which incorporated a recent OCR resolution agreement of sexual misconduct complaints against the Chicago Public Schools, the enforcement initiative will focus on the design and the implementation of schools’ centralized systems for sexual misconduct prevention, education, response, and data management.

While we can expect more information and technical assistance from the OCR in the months to come, the announcement makes clear that the enforcement initiative will include:

In some ways, this initiative is reminiscent of the OCR’s increased scrutiny of higher education’s handling of sexual misconduct over the past decade. K-12 schools can benefit from the many lessons learned from higher education institutions, as well as those set forth in the Chicago Public Schools resolution agreement referenced above.

Now is the time to review the design and the implementation of your school’s systems for sexual misconduct prevention, education, response, and data management. We recommend working with experts in the field of sexual misconduct prevention and response.

The attorneys at Strassburger McKenna Gutnick & Gefsky have a depth of experience working in the education field, helping our clients navigate the constantly evolving regulations for all institutions including K-12 schools and universities.  Pamela Connelly will be continuing to post a deeper dive on Title IX and Title VII.   You can reach out to Ms. Connelly at pconnelly@smgglaw.com or (412) 281-5423 with any questions or to discuss.

It’s the first day of class, and you receive an anonymous hotline complaint about an employee’s sexually harassing conduct towards a subordinate.

Follow your tried-and-true employment discrimination complaint process developed under Title VII, that familiar civil rights law that bars employment discrimination, and you’re good, right?

Not necessarily.

For most institutions engaged in educational programs and activities and accept federal funding, both Title VII (the law barring employment discrimination) and Title IX (the law barring gender discrimination in educational programs) govern the rights and responsibilities of the institutions and their employees.[i]

As a practical matter, what risks and roadblocks does this create?

Currently, Title VII and Title IX employ similar and familiar legal concepts and analyses. However, there are important conflicts and inconsistencies.

Key distinctions that may apply during your internal complaint process that HR professionals need to know include:

Key distinctions in administrative complaints with governmental agencies include:

Key distinctions in damages available under the two laws include:

Finally, it is important to note that new federal Title IX regulations are expected soon. While their final content is unknown, the draft regulations, if adopted without revisions, would result in radical changes to the resolution of workplace sexual misconduct claims. Under the proposed new Title IX regulations, here are just a few of the changes:

HR professionals working for institutions engaged in educational programs and activities should proactively learn about the interplay between these two important civil rights laws and their sometimes inconsistent obligations. Working with counsel who understands both Title IX and Title VII can help you synthesize these complex obligations.

Pamela Connelly will be continuing to post a deeper dive on Title IX and Title VII.   You can reach out to Ms. Connelly at pconnelly@smgglaw.com or (412) 281-5423 with any questions or to discuss.

[i] The United States Courts of Appeals for the First, Third, Fourth, Sixth and Eighth Circuits have held that Titles VII and IX apply concurrently.  The Fifth and Seventh Circuits have disagreed.

Sexual misconduct cases on college campuses – otherwise known as Title IX cases – fill the headlines. Not surprisingly, Title IX is often associated only with sports or higher education.

But if you provide health care within Pennsylvania, New Jersey, Delaware, or the Virgin Islands, and provide educational programs, Title IX likely applies to you.

Before you are faced with your first Title IX complaint, read on:

Title IX is a federal law that prohibits sex discrimination in educational programs or activities that accept federal funding. But Title IX applies broadly, beyond what might be considered traditional educational institutions.

In a case that governs Pennsylvania, New Jersey, Delaware, and the Virgin Islands, the U.S. Court of Appeals for the Third Circuit held that a private hospital is subject to Title IX sex discrimination and retaliation claims raised by a participant in its residency program. The private hospital had sought to dismiss the case, arguing that Title IX did not apply because it was not primarily an educational institution. The court rejected that argument, holding that Title IX applied to the private hospital and covered not just students, but also employees. Doe v. Mercy Catholic Med. Ctr., 850 F.3d 545 (3rd Cir. 2017).

Because of this ruling, health care providers should proactively assess with their counsel whether they are subject to Title IX in two steps:

If Title IX applies, now is the time to evaluate with your counsel whether your existing policies, procedures and practices comply.  Because both Title VII (which prohibits discrimination in employment) and Title IX (which prohibits discrimination in an educational environment) apply contemporaneously, complex compliance questions can arise.  Each law has different requirements, standards, and regulatory frameworks. Adding to the complexity, the Title IX regulations and case law are rapidly evolving with new Title IX federal regulations expected in 2020.

Taking these proactive steps, and working with counsel who understands both Title IX and Title VII before you receive your first complaint, will be time well spent.

Pamela Connelly will be continuing to post a deeper dive on Title IX and Title VII.   You can reach out to Ms. Connelly at pconnelly@smgglaw.com or (412) 281-5423 with any questions or to discuss.

Any day now, Secretary of Education Betsy Devos’s new Title IX regulations will be published. They are expected to substantially change the requirements for responding to sexual misconduct in an educational environment. While the final content remains unknown, one thing is certain – institutional policies, processes and practices surrounding sexual misconduct will remain under a microscope.

For higher education, K-12 schools, and teaching hospitals, now is the time to think proactively about establishing a strong foundation for both complying and balancing the important legal obligations, rights, and values that arise in these situations.

While we wait, consider these recommendations:

  1. Establish and gather your internal core team that works on these issues.
  2. Start preparation with the mission in mind: an environment and a culture free from discrimination or harassment.
  3. At the same time, center the conversation around an institutional commitment to fairness and due process.
  4. Review your existing policies and grievance procedures.
  5. Assess how you handle other complaints of harassment and discrimination.
  6. Assess high risk areas for your institution.
  7. Prepare and train investigators and hearing officers.
  8. Assess your capacity and practices around providing supportive measures to the parties.
  9. Think proactively about communication – with your students, faculty, employees, broader community.
  10. Consider what your Board should know about your policies, practices and systems.

Taking these proactive steps, and working with outside counsel that understands both Title IX and your mission, will position you well for the analysis and work to come.

In the coming weeks Pamela Connelly will post a deeper dive on a few of these recommendations. In the meantime, you can reach out to Ms. Connelly at pconnelly@smgglaw.com or (412) 281-5423 with any questions or to discuss.