Opinion: Revisions, clarifications in federal law

Several federal laws, directives and guidance have been recently modified or eliminated: The coronavirus relief bill now permits formerly ineligible employers to claim an employee retention credit; the Office of Federal Contract Compliance Programs revised certain pay equity audits, and the deadline is approaching for companies to request the OFCCP not publicly release their confidential equal employment reports; and the Equal Employment Opportunity Commission released new guidance for mental health leave.

Employee retention credit
Amendments to the Coronavirus Aid, Relief and Economic Security Act and corresponding IRS notices and bulletins now clarify and allow eligible organizations to claim an employee retention credit, even if the entity obtained a Paycheck Protection Program loan. Originally, businesses were permitted to claim either the ERC or the PPP. The ERC gives eligible enterprises up to $5,000 in payroll tax credits, per associate, for wages and health insurance in 2020, and up to $7,000 per worker, per quarter, for the first three quarters in 2021. Small corporations that began operations during COVID-19 also may qualify for the fourth quarter of 2021. One eligibility test consists of a 50% decline in gross receipts on a quarterly basis for 2020 and a 20% decline in gross receipts on a quarterly basis for 2021, compared with the same quarters in 2019. The second test is the full or partial suspension of operations due to a COVID-19 order requiring the employer to alter the workplace and/or operations.

Contract compliance
In March, the OFCCP issued Directive 2022-01 mandating contractors to meet the compensation analysis requirement by performing a pay equity audit and providing a complete copy to the OFCCP. Due to objections regarding overreach, the OFCCP modified the directive and no longer requires pay equity audits. The OFCCP reaffirmed it will not force production of privileged communications or attorney work product.

Also involving the OFCCP, the Department of Labor is planning on publicly releasing all confidential EEO-1 reports filed between 2016 and 2020 due to a Freedom of Information Request from the Center for Investigative Reporting. The EEOC is forbidden from making EEO-1 reports public. However, the OFCCP position is that the EEOC requirements for EEO-1 reports held by the OFCCP do not apply. Formerly, when the OFCCP received a FOIA request, the OFCCP sent the pertinent contractor its rights so the contractor could object. With the current FOIA request, the OFCCP plans to release all EEO-1 data. All companies who file EEO-1 reports with the EEOC have until Oct. 19 to file written objections with the OFCCP to prevent the disclosure of their information.

Mental health leave
The EEOC fiscal 2021 report identified that almost 30% of alleged discrimination claims under the Americans with Disabilities Act were due to mental health conditions. Therefore, the EEOC recently provided new guidance concerning mental health leave under the Family Medical Leave Act. The guidance reaffirms that an eligible team member may take a job-protected leave for “serious health condition(s) or to care for a spouse, child or parent because of a serious health condition.” The guidance states serious health conditions include both physical and mental health conditions that necessitate inpatient care or ongoing treatment by a health care provider. Serious mental health conditions for the latter include those that incapacitate a person for more than three consecutive days and consist of at least one of three scenarios. First, the condition entails multiple appointments with a health care provider, including a psychiatrist, clinical psychologist or clinical social worker. Second, the condition involves a single appointment and follow-up care, such as prescription medication, behavioral therapy or outpatient rehabilitation counseling. Third, the condition is chronic, such as anxiety, depression and dissociative disorders; causes intermittent times when an individual is incapacitated; and requires treatment by a health care provider at least twice a year.

FMLA leave also may be taken to provide care for a spouse, child or parent who is unable to work or perform other regular daily activities because of a serious mental health condition. Providing care includes providing psychological comfort and reassurance that would be beneficial to a family member with a serious health condition who is receiving inpatient or home care. Caring for a family member includes helping with basic medical, hygienic, nutritional or safety needs, and filling in for others who normally provide care.

Lynne Haggerman holds a master of science in industrial organizational psychology and is president/owner of Lynne Haggerman & Associates LLC, specializing in management training, retained search, outplacement and human resource consulting. She can be reached at
lynne@lynnehaggerman.com.