McDermott Will & Emery updates

Return to work: remote work considerations
McDermott Will & Emery
  • Employment & Immigration
  • USA
  • 16 June 2021

As COVID-19 vaccines continue to be rolled out, many employers that shifted to remote work environments at the onset of the pandemic still have employees working from home. While some employers intend to transition back to the regular workplace once the environment improves, many intend to maintain a remote workforce for the longer term. However, remote work arrangements create a number of employment and tax challenges. This article sets out key considerations for employers.

COVID-19 vaccine – Q&A
McDermott Will & Emery
  • Employment & Immigration
  • USA
  • 09 June 2021

This article answers employers' questions on the COVID-19 vaccine, including with regard to mandatory and voluntary vaccination policies, requests for remote working, the individualised enquiry framework, anti-vaccination advocacy, Health Insurance Portability and Accountability Act privacy, religious exemption requests and workers' compensation claims.

Reverse discrimination risks to consider in managing ESG aspirations
McDermott Will & Emery
  • Employment & Immigration
  • USA
  • 02 June 2021

Environmental, social and corporate governance (ESG) efforts are important but create unique risks for multinationals with US operations due to the risk of reverse discrimination litigation under US law. This is because US employment discrimination laws swing both ways. For example, the prohibition against sex discrimination protects men as well as women. This means that ESG efforts involving employment must be pursued more thoughtfully.

COVID-19 vaccine: what can employers require?
McDermott Will & Emery
  • Employment & Immigration
  • USA
  • 26 May 2021

Employers that implement a mandatory vaccination programme should pay close attention to their responsibilities under Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Genetic Information Non-discrimination Act, Occupational Safety and Health Administration guidelines and the Employee Retirement Income Security Act, as many of the traditional applications of those laws apply to this type of programme.

How should employers prepare for New York's most stringent workplace safety law?
McDermott Will & Emery
  • Employment & Immigration
  • USA
  • 19 May 2021

New York Governor Andrew Cuomo recently signed into law the New York Health and Essential Rights (HERO) Act, which imposes stringent new workplace safety requirements on all employers in New York. The HERO Act requires the New York commissioners of labour and health to create a model airborne infectious disease exposure prevention standard for all employers across the state, differentiated by industry. This article provides guidance for employers on how to prepare for the act's implementation.

IRS issues practice unit on Section 965 transition tax
McDermott Will & Emery
  • Corporate Tax
  • USA
  • 02 April 2021

One of the most pressing audit issues for large taxpayers today centres on the Internal Revenue Code Section 965 transition tax. The Internal Revenue Service has designated Section 965 as a campaign issue and is actively auditing taxpayers' transition tax calculations and positions, along with other tax reform items. The stakes are high, particularly given the potential to pay this tax over eight years.

COVID-19 vaccine Q&A for employers
McDermott Will & Emery
  • Employment & Immigration
  • USA
  • 17 March 2021

With the COVID-19 vaccination process underway, employers are navigating unprecedented issues within their workforce. This article explores the most pressing questions that employers are asking – including whether employers can (and should) mandate vaccination – as well as other novel workplace challenges stemming from the roll-out of a COVID-19 vaccine.

Mandatory COVID-19 vaccination programmes
McDermott Will & Emery
  • Employment & Immigration
  • USA
  • 10 March 2021

With the COVID-19 vaccination process underway, employers are navigating unprecedented issues within their workforce. This article explores employers' obligations when implementing mandatory vaccination programmes, issues concerning employee data that is provided as proof of vaccination or pre-vaccination screening and defining 'reasonable accommodation' and potential Americans with Disabilities Act concerns.

Exxon prevails in $200 million tax penalty case
McDermott Will & Emery
  • Corporate Tax
  • USA
  • 19 February 2021

The US District Court for the Northern District of Texas recently ruled in favour of Exxon Mobil Corporation in its battle against the government over tax penalties. Exxon had filed amended returns for its 2006 to 2009 tax years seeking a $1.35 billion tax refund based on a change of character of certain transactions. The government disallowed the refund claims and imposed a $200 million penalty pursuant to Section 6676 of the Internal Revenue Code. Exxon paid the penalty and filed suit for a refund.

COVID-19 vaccine FAQs for employers
McDermott Will & Emery
  • Employment & Immigration
  • USA
  • 13 January 2021

Employers can implement a mandatory COVID-19 vaccination policy, subject to some conditions and exceptions. There are a number of factors that employers should consider when determining whether to make a COVID-19 vaccine mandatory or voluntary, including the administrative burden, legal exposure and public relations issues. This article answers employers' key questions on the matter.

Cal/OSHA adopts emergency COVID-19 workplace standards
McDermott Will & Emery
  • Employment & Immigration
  • USA
  • 09 December 2020

California's Division of Occupational Safety and Health (Cal/OSHA) recently adopted emergency temporary standards on COVID-19 prevention in the workforce. These temporary standards will require most Californian employers to implement a written COVID-19 prevention programme meeting certain criteria. While many employers have already followed Cal/OSHA guidance to minimise employees' exposure to COVID-19, the new requirements warrant an immediate review of current policies to ensure compliance.

Executive order on workplace training for federal contractors and federal grant recipients released
McDermott Will & Emery
  • Employment & Immigration
  • USA
  • 04 November 2020

President Donald Trump recently issued an executive order which prohibits federal contractors and federal grant recipients from conducting any workplace training that implies, among other things, reverse discrimination. This requirement applies to all contracts and grants entered into after the order's effective date and takes effect 60 days after the order's effective date, potentially affecting many organisations that currently receive federal assistance through contracts, grants or other programmes.

Considerations for remote and in-person workers as school year commences
McDermott Will & Emery
  • Employment & Immigration
  • USA
  • 14 October 2020

As students begin a new school year, employers face a new challenge – employee leave and accommodation requests. With widespread remote learning and evolving legal obligations to provide paid leave to working parents, employers must navigate unique staffing challenges while complying with the Families First Coronavirus Response Act and other state and local leave laws.

New California law: notice of COVID-19 exposure in workplace and imminent hazards in worksites
McDermott Will & Emery
  • Employment & Immigration
  • USA
  • 07 October 2020

California Governor Gavin Newsom has signed Assembly Bill 685 into law, which will come into effect on 1 January 2021. The law creates an enforceable state-wide standard for how employers should handle potential exposure to COVID-19 and outbreaks in the workplace and expands the power of California's Division of Occupational Safety and Health to enforce this standard and take action to protect employees, including shutting down worksites deemed to be an 'imminent hazard' due to COVID-19 risk.

California COVID-19 Supplemental Paid Sick Leave Act effective immediately
McDermott Will & Emery
  • Employment & Immigration
  • USA
  • 30 September 2020

Employers with more than 500 employees nationally, and employers of healthcare providers and emergency responders previously exempted from the Families First Coronavirus Response Act requirements, must provide Californian employees with two weeks' supplemental paid sick leave for specified COVID-19 reasons. In addition to providing paid leave, the law requires employers to comply with urgent notice and posting requirements that are administratively burdensome.

New Jersey reconsiders financial transaction tax
McDermott Will & Emery
  • Corporate Tax
  • USA
  • 25 September 2020

A troubling New Jersey financial transaction tax proposal, which appeared to be gaining popularity over the past few months, has reportedly been left out of the 2021 budget deal that Governor Phil Murphy recently struck with legislative leaders. The decision to drop the transaction tax from the deal came days after the Wall Street Journal reported that prominent stock exchanges with data centres in New Jersey were prepared to exit the state if the tax plan was adopted.

DOL creates path for 401(k) plans to offer private equity investment options
McDermott Will & Emery
  • Employment & Immigration
  • USA
  • 23 September 2020

The US Department of Labour recently issued an information letter indicating that, in limited circumstances, it will allow defined contribution retirement plans (eg, 401(k) plans) to indirectly invest in private equity funds. Specifically, the information letter allows plans to offer their participants a professionally managed asset allocation fund with a private equity component as an investment option.

IRS issues proposed regulations intended to clarify carried interest rules
McDermott Will & Emery
  • Corporate Tax
  • USA
  • 04 September 2020

The Internal Revenue Service recently issued proposed regulations under Section 1061, a provision enacted as part of the Tax Cuts and Jobs Act 2017 that recharacterises certain net long-term capital gain with respect to applicable partnership interests as short-term capital gain. The proposed regulations provide clarity on some of the statutory provisions. This article discusses some of the noteworthy provisions in the proposed regulations.

Off-duty conduct: COVID-19 and social media ranting – what's an employer to do?
McDermott Will & Emery
  • Employment & Immigration
  • USA
  • 02 September 2020

Many employers that reopened recently are now facing a new challenge – employee off-duty conduct. At stake are both workplace and customer safety, as well as the company's reputation. This article highlights different scenarios that employers are likely to face and provides tips on how they can practically navigate and mitigate any potential risks when responding to off-duty conduct issues.

SDNY vacates portion of DOL final rule on FFCRA
McDermott Will & Emery
  • Employment & Immigration
  • USA
  • 19 August 2020

The US District Court for the Southern District of New York recently struck down four parts of the US Department of Labour's final rule implementing the Families First Coronavirus Response Act (FFCRA). The FFCRA provides COVID-19-related sick leave and family leave to employees of businesses which have fewer than 500 employees. This article examines what this decision means for employers.

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