With many thanks to Chris Guldberg for this post. 

On May 12, 2020, the IRS released Notice 2020-29 (the “Notice”) providing greater flexibility to make mid-year election changes under Code Section 125 cafeteria plans during 2020 with respect to employer-provided health coverage and health and dependent care flexible spending accounts (“FSAs”). The notice also provides additional time in which unused amounts in FSAs can be used to pay expenses and avoid forfeiture.

Mid-year Election Changes

As background, cafeteria plans are the vehicle that allow employees to elect to pay their share of benefit premium costs for certain welfare benefits (for example, the employee premium portion paid for medical coverage) on a pre-tax basis rather than paying for those costs on an after-tax basis. In general, employee cafeteria plan elections must be made prior to the first day of the plan year and cannot be changed during the plan year except for specific change in status type events permitted under the relevant regulations (for example, the birth of a child).

Continue Reading Increased Flexibility for Taxpayers in Section 125 Cafeteria Plans in Response to COVID-19

With many thanks to Chris Guldberg for this post. 

Employers considering COVID-19-related layoffs and RIFs right now should add one more item to their checklist of considerations: the possibility of inadvertently triggering a “partial termination” of their tax-qualified retirement plan.

Where plan participant numbers decrease substantially, the plan may incur what’s known as a “partial termination.” This is significant because, once triggered, the IRS requires the benefits of all “affected employees” be fully vested. Failure to provide such vesting could put the plan’s tax-qualified status at risk.

Continue Reading Beware — COVID-19 Layoffs May Trigger Liability for Partial Plan Terminations

We hope you found last week’s video chat series helpful and informative. Due to popular demand, we are continuing this series of quick and bite-sized video chats, where our employment partners team up with practitioners in various areas of law to discuss the most pressing issues for employers navigating the return to work.

This series builds on our recent client alert, webinar and Shelter-In-Place Tracker that are all designed to help employers as they consider reopening the workplace.

Click here to select a video chat on demand. The chats cover PPE, SIP Orders, Wage & Hour, Remote Working, and RIFs.


We are pleased to share our Shelter-in-Place / Reopening Tracker.

This document identifies the relevant state-wide shelter-in-place orders and their related expiration dates as well as the state-wide reopening plans, and whether local (county/municipal) orders also apply, in each of the 50 United States.

Please check back for updates throughout the pandemic.

As companies develop their reopening playbook, health & safety is of course the top line concern. Face coverings have emerged as one of the most popular preventative measures for mitigating the spread of the virus. For employers, questions abound about obligations related to face coverings.

We’ve been helping multinational companies navigate the use of face coverings in the workplace. Here are answers to some of the most common questions in the US:

  • Does the CDC require the use of face coverings in the workplace?

No. At this point, there is no federal requirement that employees wear face coverings in the workplace. The CDC recommends wearing cloth face coverings in public settings where other social distancing measures are difficult to maintain (e.g., grocery stores and pharmacies) especially in areas of significant community-based transmission. See here.

The CDC also recommends using cloth face coverings, and not surgical masks or N-95 respirators, which are critical supplies that must continue to be reserved for healthcare workers and other medical first responders.

  • Does OSHA require the use of face coverings in the workplace?

No, except in specific workplaces where there is a higher risk of airborne exposures. OSHA has not required employees to wear masks at work as a result of COVID-19, except in certain settings such as hospitals and other workplaces where Personal Protective Equipment was required before the pandemic.

Continue Reading Face Coverings: Q&A for US Employers

As Companies develop their reopening playbook, we know that many are considering instituting temperature screening procedures either as a precaution or because local Orders may require it. Here’s the *tl;dr* on temp checks (it’s okay if you need to look that up . . . some of us did too):

Temperature checks are considered a “medical examination” under the Americans with Disabilities Act (ADA). However, the Equal Employment Opportunity Commission (EEOC) has declared the COVID-19 pandemic to be a direct threat that justifies employee medical examinations under the ADA. See https://www.eeoc.gov/facts/pandemic_flu.html. Until COVID-19 is no longer severe in the US, medical examinations such as temperature checks are permitted if: (1) an employee’s ability to perform essential job functions will be impaired by COVID-19; or (2) an employee will pose a direct threat to herself or others in the workplace due to COVID-19. (While employers may permissibly take employees’ temperatures, it’s important to understand that some people with COVID-19 do not have a fever.)

If a company is going to conduct temp checks at the workplace, we have some tips:

  • Engage a trained professional to conduct the temperature screenings. This is because a trained professional screener can handle the medical information properly and in compliance with applicable health information and data privacy laws. We do not recommend using security guards, receptionists, or other staff, to administer the temperature checks, unless they were specially trained for that purpose, and can handle the medical information properly.
  • Make sure the temperature screener avoids close contact with workers to the extent possible. Both screeners and employees should wear face coverings for the screening.
  • Employers should provide and ensure workers use all required protective equipment. Employers should consider where disposable gloves use may be helpful to supplement frequent handwashing or use of hand sanitizer; examples are for workers who are screening others for symptoms or handling commonly touched items.
  • Make sure that employee medical information, including body temperature results, are kept in a confidential medical file that is separate from the employee’s personnel file, and that access to the information is

Finally, with regard to data privacy considerations, in the US, if a third-party healthcare provider (HCP) will administer these temperature checks, companies should understand the HCP’s position under HIPAA (i.e., if the HCP qualifies as a covered entity, engaging in covered transactions). If the HCP is a covered entity, the transfer of information from the HCP to the company will need to be permissioned (i.e., through a HIPAA authorization form), unless the company relies on an exemption. If the HCP is not a covered entity and information is collected from California residents, the company would likely need to provide a just-in-time notice, pursuant to the California Consumer Privacy Act.  In general, companies should also just be aware of providing appropriate security and limiting access to any health and medical data, as such information will be subject to breach notification and other obligations in many states.

For help developing your company’s policy and practice with respect to temperature checks, contact your Baker McKenzie employment attorney.

With special thanks to Amy de La Lama for her help with this post.

Also: Happy Friday. 🙂

Welcome to Baker McKenzie’s Labor and Employment video chat series! In these quick and bite-sized video chats, our employment partners team up with practitioners in various areas of law to discuss the most pressing issues for employers navigating the return to work.

This series builds on our recent client alert and webinar on reopening for US employers. Each Q&A session is less than 15-minutes long and offers targeted insights into the critical questions employers are facing as we navigate the COVID-19 pandemic.

Click here to select a video chat on demand. The chats cover Immigration, Data Privacy, Litigation, Pay Equity and Benefits.

The way we work has been permanently transformed by the rapid deployment of a largely remote workforce during the shelter-in-place. Threats to companies’ most valuable confidential data have not merely increased — an entirely new set of legal and technical risks to trade secrets have emerged over the last 90 days that are fundamentally different from those that existed before the world was transformed.

With a near 100% remote workforce, companies have lost visibility into many early warning signs that data is being compromised and are thus unprepared. Companies preparing to transition back to a partial in-office environment face additional challenges.

Members of our North America Trade Secrets Practice will be joined by a leading forensic expert to provide 10 specific and practical legal and computer forensic steps that every company can institute immediately, and at minimal or no cost, to hedge these risks.

Date: May 12, 2020

Time: Noon – 1:00 pm ET

Click here for more details on the webinar, included featured speakers. Register today.

On May 1 certain ILLINOIS employers got the green light to begin reopening, after the entry of a modified statewide stay-at-home order. Employers must require employees to maintain social distancing or must wear masks provided by the Company. We take you through the details below:

What does the order say about face covering, social distancing, and hygiene for business employers?

The order’s requirements for business employers depends on the type of business.

Are there rules for non-essential stores?

Continue Reading Reopening in Illinois? Provide a mask!

On April 29, public health officials in six Bay Area counties (Alameda, Contra Costa, Marin, San Francisco, Santa Clara) and the city of Berkeley released new health orders extending mandates to shelter in place through May 31, while relaxing restrictions around some outdoor businesses and recreation activities. The new Orders will take effect May 4, the day existing shelter-in-place mandates would have expired. (We previously discussed the local Orders here and here.)

Continue Reading Bay Area’s Shelter-In-Place Orders Modified and Extended to May 31