Author Archives: anajjar

#D.I.Y. Responding to COVID-19 Related OSHA Inquiries: Caution Required

The Occupational Safety and Health Administration (OSHA) is issuing inquiry letters based on complaints filed concerning workplace safety concerns relating to COVID-19.   In the letter, OSHA advises the employer that it will not conduct an on-site inspection, but invites the employer to immediately investigate, respond to the allegations of violations and/or hazards, and advise OSHA of its findings.  Many employers respond to the innocuous “invitation,” and do so without understanding their OSHA obligations or the potential fines and possible debarment from federal contracts which can result from its response. 


Massachusetts Economy to Reopen in Four Phases: Will Employers Be Able to Meet New Mandatory Workplace Safety Standards?

Governor Charlie Baker has announced plans to reopen the Massachusetts economy in four phases beginning May 18.   Non-essential businesses have been closed in the state since Governor Baker issued an Executive Order closing all non-essential businesses on March 23 due to the COVID-19 pandemic.  The four phases – Start, Cautious, Vigilant, and the New Normal – will be implemented based on public health guidance with the goal of methodically allowing certain businesses, services, and activities to resume, while protecting public health and limiting a resurgence of new COVID-19 cases.


DOL Issues FAQs Related to Families First Coronavirus Response Act

The Families First Coronavirus Response Act (FFCRA) which was signed into law on March 18, 2020 directed the USDOL to issue regulations regarding the emergency paid sick leave and extended FMLA benefit provisions of the law.  USDOL held a virtual town hall on Friday March 25, 2020 to hear the concerns of the business community in relation to implementation of the law, and to gain insight on how to best structure the upcoming regulations.  While the USDOL has not yet issued the regulations, it has issued FAQs to address some common questions and concerns of employers and employees.  The FAQs provide insight as to what will be included in the upcoming regulations.


Furlough or Layoff: A Distinction with a Difference Massachusetts DUA Issues Emergency Regulations Relating to COVID-19

The Massachusetts Department of Unemployment Assistance has issued emergency regulations related to the COVID-19 pandemic.  The regulations became effective immediately after being issued on March 16, 2020 and can be found at 430 CMR 22.00.  The new regulations make several changes with the purpose of providing unemployment assistance to as many people as possible who have been affected by the pandemic.


The regulations create a special “standby” status under the law.  This new standby status makes individuals who are temporarily unemployed due to lack of work because of the COVID-19 pandemic eligible for unemployment benefits.  Under the regulations, an individual will be considered unemployed “due to lack of work” if the individual’s workplace is shutdown, or if the individual needs to stay home for any reason related to COVID-19. 


The usual DUA requirement to look for work while seeking DUA benefits is waived under the regulations, so long as the claimant remains on standby and maintains contact with the employer.  The claimant must be available for all hours of suitable work offered by the employer.  Under the regulations, the definition of suitable work changed.  The DUA will take into consideration whether the claimant has a “condition” that prevents the claimant from performing the functions of the job without risk to his or her health or safety.  Under the regulations, a “condition” is considered to be a request from an employer, medical professional, local health official or any civil authority for the claimant or a claimant’s immediate family member or household member to self-quarantine, even if the claimant or family/household member has not been diagnosed with COVID-19. 


DUA will ask an employer to verify a claimant’s standby status.  If the employer fails to respond, the claimant will be deemed to be on standby status for four weeks.  If the employer responds, an employer may request that the employee be on standby status for a maximum of 8 weeks.  If the employer responds that the employer is not on standby status or does not have a return to work date within 8 weeks, the claimant is subject to M.G.L. c. 151A, 24(b) (“Be capable of, available, and actively seeking work in his usual occupation or any other occupation for which he is reasonably fitted”).  The Director of the DUA, at his discretion, may grant standby status for more than 8 weeks if there was a COVID-19 infection at the employer’s place of business that caused the employer to close or curtail operations for a longer period of time.


Other changes to DUA requirements include:


  • File claims for benefits online (all in person services at Career Centers suspended);
  • All requirements regarding attending seminars at the MassHire career centers have been suspended;
  • Deadlines missed by employers and claimants due to effects of COVID-19 may be excused under DUA’s good cause provision;
  • Employers whose businesses are severely impacted by COVID-19 can request extensions for filing and paying unemployment contributions;
  • DUA will excuse employers and claimants from missing deadlines due to COVID-19 under certain circumstances;
  • “Worksearch” requirements will be interpreted to appropriately permit claimants affected by COVID-19 to collect benefits; and
  • All appeal hearings will be held by telephone only.


Emergency legislation has also been passed that will allow new claims to be paid more quickly by waiving the 1 week waiting period for unemployment benefits.  The emergency legislation Authorizing Waiver of the One Week Waiting Period for Unemployment Benefits became effective on March 10, 2020 and expires 90 days after the Commonwealth’s state of emergency status ends. 


Certain health insurance providers in the Commonwealth, including Harvard Pilgrim and Tufts, have amended their eligibility requirements to allow employers to maintain coverage for employees who are furloughed or on temporary leave as a result of closures due to COVID-19.  Extended coverage is limited to employees who can no longer work due to the pandemic.  Employers should check with their health insurance brokers to determine if such reduced eligibility requirements apply to their workforce. 


In this unprecedented environment, guidance is quickly changing.  All circumstances also are highly fact dependent.  Employers should seek up to the minute advice from their employment counsel.  NELGPC attorneys are available if you have questions. 



© March 23, 2020


The Najjar Employment Law Group, P.C. was established to provide employers with a practical approach to human resource issues. Our objective is to assist clients in meeting their business goals while minimizing employee-related conflicts. We provide clients with informed advice on not only the most recent developments in the law, but also current trends for best practices in employment and compensation matters.

Our labor and employment attorneys, working with our pension and benefits attorneys, bring together one cohesive team with diverse capabilities to assist our clients in managing and addressing complex benefits and employment law issues which arise in the workplace. Our team understands the importance of learning about each client’s business and culture.


This is a copyright publication. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopy, recording, or any information storage and retrieval system, without written permission.


The article contained in this publication has been abridged from laws, court decisions, and administrative rulings and should not be construed or relied upon as legal advice. If you have questions concerning particular situations and specific legal issues, please contact your Najjar Employment Law Group, P.C. attorney. This publication can be considered advertising under applicable laws.

Federal Emergency Paid Sick Time: Avoiding Missteps and Business Survival

President Donald J. Trump signed the Families First Coronavirus Response Act on March 18, 2020.  The new law is effective April 2, 2020 and applies to all employers with less than 500 employees and requires covered employers to provide up to 80 hours of paid sick time related to COVID-19.  An employer may exclude an employee who is a healthcare provider or an emergency responder from eligibility for this benefit.

This E-Alert is to provide our clients and friends with an overview of the new law.  However, it is important for employers to avoid a myopic approach when applying the complex federal and state patchwork of protective legislation to this unprecedented situation.  Although hard to believe, lawsuits are already being filed against employers who have misstepped despite trying to do the right thing for their employees as well as for their business to survive. 


Federal Emergency Paid Family Leave: Avoiding Missteps and Business Survival

President Donald J. Trump signed the Families First Coronavirus Response Act on March 18, 2020.  The new law is effective April 2, 2020 and applies to all employers with less than 500 employees.   Eligibility for Emergency FMLA leave is limited to caregivers who are unable to work or telework due to the need to care for a child under 18 if the school or place of care is closed or the childcare provider unavailable due to a significant public health emergency.

This E-Alert is to provide our clients and friends with an overview of the enhanced Family Leave provisions of the new law.  However, it is important for employers to avoid a myopic approach when applying the complex federal and state patchwork of protective legislation to this unprecedented situation.  Although hard to believe, lawsuits are already being filed against employers who have misstepped despite trying to do the right thing for their employees as well as for their business to survive. 


BEWARE: The PFMLA Trap for the Unwary

                Beginning October 1, 2019, employers will begin withholding contributions under the Massachusetts Paid Family and Medical Leave Act (“PFMLA”).    Much of the compliance guidance, including from payroll companies, is out of date regarding the inclusion of individual “independent contractors” in the workforce count and for contribution purposes.  The “short-hand” guidance has stated that individuals to whom the employer issues a 1099MISC, and who are performing services in your trade or business or regularly engaged to perform services, need to be counted in your workforce if more than 50% of your workforce. Unfortunately, the trap is that employers who “count” these individuals for PFMLA purposes also should reclassify such individuals as W-2 employees because they are not properly classified as Independent Contractors in Massachusetts.


Checklist for HR Compliance Deadlines

Human resource professionals are challenged with many new state and federal laws, as well as new regulations, which have significant upcoming deadlines. To assist Massachusetts employers in timely meeting their obligations, we have developed a Compliance Deadline Checklist. This Checklist outlines the most significant new laws impacting the workplace, and includes action items intended to guide human resource professionals in meeting deadlines to comply with the new laws.

Click here to download NELGPC’s Checklist for Human Resources Compliance Deadlines.


United States DOL Issues Notice of Proposed Rulemaking To Update FLSA Regular Rate Regulations

The United States Department of Labor announced a Notice of Proposed Rulemaking on March 28, 2019 regarding the regular rate of pay requirements under Section 7(e) of the Fair Labor Standards Act (FLSA).  The Proposed Rule will be published in the Federal Register on March 29, 2019.   The Proposed Rule seeks to clarify and update the “regular rate” determination requirements for the first time in over 50 years.  When the FLSA was promulgated over 50 years ago, typical compensation consisted predominantly of traditional wages; paid time off for holidays and vacations; and contributions to basic medical, life insurance, and disability benefits plans.  Since then, the perks and benefits offered by employers have greatly changed. 


Employer Policies Unlawful Under Obama May Be Lawful Again

Trump Administration Rolling Back Certain Obama-Era DOL and NLRB Interpretations


The Trump Administration has begun to roll back some of the prior administration’s policies which reinterpreted decades of US Department of Labor and National Labor Relations Board decisions and enforcement policies.  Many employers had revised long standing payroll practices, handbook policies, and internship programs to comply with these interpretations.   As the Trump-era DOL and NLRB are beginning to restore many of the prior interpretations, including under the Fair Labor Standards Act and the National Labor Relations Act, employers might reconsider similarly restoring prior policies and practices when updating employee handbooks for 2018.


Massachusetts Highest Court Finds that Employers Must Accommodate Medical Marijuana

On July 17, 2017, the Massachusetts Supreme Judicial Court issued its long awaited decision in Barbuto v. Advantage Sales and Marketing, No. SJC-12226 (2017).  The Barbuto decision is significant because it is the first Massachusetts case to interpret the Massachusetts Medical Marijuana Act as it relates to employment.  The Barbuto decision differs from all other courts that have considered the issue, and held that an employer has a duty to accommodate medical marijuana use under the state disability law.  The Court also held, however, that the Medical Marijuana Act itself does not provide a private cause of action and that an employee alleging handicap discrimination may not pursue a wrongful termination public policy claim.


Recent Massachusetts Wage Act Decision

Wage Act Violations: Even More Expensive After Supreme Judicial Court Rules That Prejudgment Interest Can be Awarded in Addition to Triple Damages and Attorneys Fees

Although many Employment Practices Liability Insurance (EPLI) Policies do not cover wage claims, the number of wage claims under state and federal wage-hour laws, including class actions, have rapidly risen over the past several years.   Recently, on a question referred from the federal court to the Massachusetts Supreme Judicial Court (SJC), the SJC made state wage act violations even more expensive for employers.  On June 26, 2017, the SJC held that, in addition to mandatory triple damages, prejudgment interest must be added to the amount of lost wages and other benefits awarded under the Massachusetts Wage Act.  (George v. National Water Main Cleaning Co., No. SJC-12191 (MA, June 26, 2017)).  The Court clarified, however, that such prejudgment interest shall not be added to the treble damages part of the award.


EEOC Guidance on Mental Health Disabilities: A Gift for Employers

The EEOC recently issued a resource document intended to raise awareness about the rights of employees with mental health conditions under the Americans with Disabilities Act (ADA).   Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights explains that job applicants and employees with mental health conditions are protected from employment discrimination and harassment based on their conditions. The document also answers questions about how to request an accommodation, describes some types of accommodations, and addresses restrictions on employer access to medical information, confidentiality, and the role of the EEOC in enforcing the rights of people with disabilities.   The EEOC is focusing an increasing amount of attention on mental health disabilities in the workplace.


Have You Updated Your Bathroom Policies to Allow Access Based on Gender Identity?

Effective October 1, 2016, Massachusetts will prohibit discrimination in public accommodation based on an individual’s gender identity.   This law will affect not only places of accommodation open to the public, but also will require access to bathrooms in the workplace based on gender identity.  The Massachusetts Commission Against Discrimination has made clear that an employer’s failure to increase employee awareness and allow access to restrooms based on one’s gender identity could subject employers to charges of discrimination, harassment, and retaliation.