HR Helpline Toolkit Compliance Updates

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Federal Compliance Updates

Federal Updates May 2021

CDC COVID-19 Updates

The CDC provided updated guidance in April related to mask wearing and vaccines. The FAQs  under “About COVID-19 Vaccines” were updated with additional information about vaccines. On April 27, the CDC provided updated guidance for fully vaccinated people and mask wearing in public. From an employment perspective, employers should continue to proceed cautiously and follow the CDC guidance for workplace and businesses.

Vaccines and OSHA Events

As more businesses reopen and loosen restrictions, some employers are considering a mandatory vaccine policy. This decision should take into account many factors, including the company size, industry, culture, nature of the employee’s duties. Visit the CDC GUIDANCE ON WORKPLACE VACCINES article in the April Compliance Updates for additional information on this topic.

OSHA recently published FAQs which provide guidance on whether adverse reactions to COVID-19 vaccines would be a recordable event under OSHA. The FAQ’s state that if an employer requires its employees to be vaccinated as a condition of employment, then any adverse reaction to the vaccine is work-related.

OSHA states that adverse reactions should NOT be recorded when the employer only recommends that employees receive the vaccine, even if the employer provides vaccines or makes arrangements for employees to receive them offsite. However, it must be the employee's choice to accept or reject the vaccine without consequences to their performance rating or professional advancement. In other words, it must truly be voluntary without any pressure or negative consequences if the employee elects not to take the vaccine.

Some employers have provided incentives for employees to obtain the vaccine. The FAQs do not address whether providing incentives would fall under “requiring” employees to obtain vaccines, but if the incentives were substantial, it would definitely put some doubt on whether the vaccine was completely voluntary.

ARPA COBRA Notices Now Available

The April Compliance update outlines employer obligations under the American Rescue Plan Act (ARPA), including the changes to the Consolidated Omnibus Budget Reconciliation Act (COBRA). In summary, for qualifying events due to an involuntary termination of employment or a reduction of hours, 100% of the COBRA premium is paid by the employer, health plan, or insurer and the premium expense is reimbursed by the federal government through a refundable FICA tax credit. This change is effective for eligible qualifying events which occur from April 1, 2021 until September 30, 2021.

Employers are required to update COBRA notices previously sent to individuals eligible for the subsidy to describe the subsidy and also issue extended COBRA election notices to eligible individuals. The Department of Labor (DOL) has now published FAQs and Model Notices for employers to use. Notice must be provided to eligible individuals by May 31, 2021. The Model Notices are available under the Termination folder in the HR Toolkit.

Required Actions:

  • Identify COBRA qualified employees and beneficiaries who are eligible for the COBRA subsidy;
  • Reach out to recently terminated employees who did not elect COBRA coverage but who are now eligible for subsidized coverage;
  • Review the new FAQs and Model Notices; and
  • Send the notices to eligible individuals no later than May 31, 2021.

Federal Updates April 2021

EEO-1 Deadline Extended

Employers with 100+ employees (and federal contractor and subcontractors with 50+ employees) are required to submit an annual EEO-1 report with employee counts by job category, race and gender.

As we recently communicated, eligible employers must submit the 2019 and 2020 EEO-1 data this year. The EEOC has just recently updated their website with details on the process. The EEO-1 portal will open on Monday, April 26th and the deadline for submitting EEO-1 reports is Monday, July 19, 2021.

Final Rules for Tipped Employees

On December 30, 2020, the Department of Labor (DOL) published its Final Rule on tips called “Tip Regulations Under the FLSA” which revises the Fair Labor Standards Act’s (FLSA) tip regulations and removes the 80/20 rule.

Background
The FLSA allows employers the option of paying tipped employees a reduced hourly cash wage if the cash wage plus tips received by an employee meets the federal minimum wage. This “tip credit” is the amount of employee tips employers are permitted to apply toward their minimum wage obligations. Currently, the FLSA’s maximum allowable tip credit is $5.12 an hour, which is the difference between the current minimum wage of $7.25 an hour and the required cash wage of $2.13 an hour.

The Final Rule clarifies tips rules, as follows:

  • Tip Pools – This is a pool that includes tipped employees (e.g. servers). Employers may have tip pools where tips are shared among employees, but this can only be among employees who “customarily and regularly receive tips.” Employers may take a tip credit only for “tipped employees” and only if the tipped employees retain all their tips.
  • Non-Traditional Tip Pools – This is a pool that includes tipped employees (e.g., servers) and non-tipped employees (e.g., cooks). This is permitted as long as (1) the pool does not include any employers, managers or supervisors and (2) the employer does not pay the tipped employees using a tip credit but instead pays them the full minimum wage without applying any tip credit.
  • Whether any type of tip pool is used or not, employers may not keep tips received by their employees, regardless of whether the employer takes a tip credit. In addition, employers are prohibited from allowing managers or supervisors to keep any portion of employees’ tips.
  • When an employee performs tipped and non-tipped duties (two jobs), the employer may take a tip credit for non-tipped duties performed, as long as (1) the duties are related to the employee’s tipped occupation and (2) the related duties are performed with the tip-producing activities or “within a reasonable time immediately before or after” the tipped activities.

The following components of the Final Rule go into effect April 30, 2021:

  • The restriction on employers, including supervisors and managers, keeping tips received by workers, regardless of whether the employer takes the credit.
  • The ability of employers that do not take tip credits to include non-tipped workers, such as back-of-the-house employees, in nontraditional tip-sharing agreements and, by doing so, boost their earnings.
  • Recordkeeping requirements. Employers must now identify on their payroll or other records each employee who receives tips and keep records of the weekly/monthly amount of tips received by each employee.

The remaining provisions will go into effect December 31, 2021, including the assessment of civil monetary penalties and the FLSA’s tip credit application to employees who perform dual tasks.

In light of the Final Rule, employers will want to review and revise policies and practices related to tipped employee wages and compensation, including any tip-sharing agreements impacting non-tipped employees.

American Rescue Plan Act (ARPA) Impacts to the Workplace

The ARPA was signed into law on March 11, 2021. Several components of the law directly affect employers and their employees. The impact to the FFCRA, Unemployment Benefits, and COBRA and are outlined below:

Families First Coronavirus Response Act (FFCRA)
The ARPA expands the tax credits for the FFCRA. Employers with less than 500 employees can receive tax credits through September 30, 2021, if they choose to provide leave under the FFCRA’s Emergency Paid Sick Leave (EPSL) and expanded Family and Medical Leave (EFML). This is voluntary for employers.

The ARPA enhances EPSL and E-FML in the following ways:

  • Expansion of Qualifying Reasons - In addition to the qualifying reasons under the EPSL and EFML, the ARPA extends qualifying reasons to include:
    • Seeking or awaiting the results of a COVID-19 diagnosis;
    • Obtaining a COVID-19 immunization;
    • Recovering from any injury, disability, illness, or condition related to a COVID-19 immunization.
  • Under the ARPA, employees may use EFML for the same qualifying reasons as the EPSL, including the above-mentioned newly-added qualifying leave expansions.
  • Restart of 10-Day Limit for Paid Sick Leave - The ARPA resets the number of days available for the employment tax credit. Employers may receive a tax credit for employees who have already used at least 10 days of EPSL leave. Beginning April 1, 2021, the 10-day limit will be reset, and any days taken previously are not counted toward the 10-day limit.
  • Enhanced EFML – The EFML originally required a total of 12 weeks of leave, with 10 weeks being paid at two-thirds of regular wages (up to $200 per day). The ARPA, however, allows employers to voluntarily offer EFML as a paid benefit for the full 12 weeks. This means the ARPA eliminates the 2-week period of unpaid leave. Since EFML is an expansion of FMLA, the amount of EFML that can be used by an employee may depend on the amount of FMLA otherwise available to the employee.
  • Additional Non-Discrimination Rules - Employers who choose to provide FFCRA leave are prohibited from discriminating in favor of highly compensated employees, full-time employees, or on the basis of employment tenure.

Unemployment Benefits
The ARPA also extends unemployment benefits in three key ways:
1. ARPA adds $300 per week for individuals collecting any form of unemployment compensation benefits.
2. Pandemic Emergency Unemployment Compensation (PEUC) benefits which may become available once an individual exhausts traditional unemployment compensation, are extended.
3. Pandemic Unemployment Assistance (PUA) benefits, which may become available once an individual exhausts extended unemployment compensation benefits, are extended.

All of these benefits are extended through September 6, 2021. In addition to extending unemployment compensation benefits, ARPA permits an individual or each spouse to exclude $10,200 in unemployment benefits from federal income tax, as long as the household income is under $150,000.

COBRA Changes

Under the ARPA, if an individual’s Consolidated Omnibus Budget Reconciliation Act (COBRA) qualifying event is an involuntary termination of employment or a reduction of hours, 100% of the COBRA premium is paid by the employer, health plan, or insurer and the premium expense is reimbursed by the federal government through a refundable FICA tax credit. This change is effective for the eligible qualifying events with occur from April 1, 2021 until September 30, 2021.

The subsidy is available for eligible individuals as well as their dependents electing COBRA, but is not available for anyone who voluntarily ends their employment. The subsidy will end on the earliest of (1) the expiration of the assistance eligible individual’s maximum 18-month COBRA period, (2) the individual’s eligibility for another group health plan or Medicare, or (3) September 30, 2021.

Employers are required to update COBRA notices previously sent to individuals eligible for the subsidy to describe the subsidy and also issue extended COBRA election notices to eligible individuals. These new and revised notices must be provided by no later than May 31, 2021. Failure to issue these notices will be treated as a failure of COBRA’s notice requirements. The Department of Labor will be publish model notices for employers to utilize for the COBRA subsidy by April 11, 2021.

Required Actions:

  • Identify COBRA qualified employees and beneficiaries who are eligible for the COBRA subsidy;
  • Reach out to recently terminated employees who did not elect COBRA coverage but who are now eligible for subsidized coverage; and
  • Update COBRA notices and prepare notices addressing the new requirements by May 31, 2021. The DOL notice model will be available by April 11, 2021.

NEW OSHA COVID-19 PROGRAM

On March 12, 2021, the Occupational Safety and Health Administration (OSHA) launched its new COVID-19 National Emphasis Program (NEP). The NEP directive outlines policies and procedures for minimizing worker exposures to COVID-19 by targeting certain “high-hazard” industries and worksites where employees may have a high frequency of close contact exposures.

The NEP will augment OSHA’s current efforts by rolling out programmed inspections at 1) workplaces deemed to have an increased potential risk of exposure; and 2) follow-up inspections at workplaces previously cited for COVID-19-related violations.
OSHA will perform on-site inspections whenever possible. OSHA will limit remote-only inspections to cases where on-site inspections cannot safely be performed.

Employers should ensure they have implemented all infection prevention safety measures in accordance with current OSHA guidance and are prepared for a potential inspection.

CDC GUIDANCE ON WORKPLACE VACCINES

The CDC has issued updated guidance for employers regarding COVID-19 vaccinations and the workplace. This guidance focuses on considerations for mandatory vaccination programs, reopening the workplace after employees have been vaccinated, and general best practices regarding vaccinations.

Similar to the recent EEOC guidance, the CDC acknowledges that mandatory vaccinations are permissible under federal law, provided that employers provide (1) medical exemptions for people who may be at risk of an adverse reaction to the vaccine, and (2) religious exemptions for people who hold a religious belief that prevents them from getting the vaccine.

DCSI will be offering a HR:30 webinar on this topic in the near future. Visit the DCSI website for training dates and times.

Federal Updates March 2021

Electronic Postings Requirements

Whether having remote employees is new to you or was already part of your business model, it’s important to understand the requirements for both physical and electronic compliance posters. The Department of Labor (DOL) recently provided guidance on how to comply with federal laws requiring the display of posters and/or notices in the workplace.

For laws where only a single notice to employees is required, sending an e-mail to employees is sufficient and in compliance. However, most federal and state employment laws require continual postings. For these laws, e-mailing posters to employees does not meet the “posting” requirement.  For the physical office, compliance posters must be posted in a highly visible and accessible location. The same concept applies to remote employees; therefore, posters must be maintained in a highly visible and accessible electronic location. This can be the company intranet site, shared network drive, or other location accessible to employees.

Employees must be also informed about how and where to access electronic postings in order to fully comply with the posting requirement.

COVID-19 Guidance for Vaccinated Persons

The Center for Disease Control & Prevention (CDC) has provided new guidance related to COVID-19 for fully vaccinated persons. The CDC now states that individuals who meet certain criteria will no longer be required to quarantine following an exposure to someone with COVID-19.  Vaccinated persons who are exposed to someone with suspected or confirmed COVID-19 are not required to quarantine if they meet the following criteria:

  • Are fully vaccinated (e.g. two vaccine doses and the 14-day waiting period)
  • Are within 3 months following receipt of the last dose in the series
  • Have remained asymptomatic since the current COVID-19 exposure

Persons who do not meet all of the criteria are required to follow current quarantine guidance after exposure to someone with suspected or confirmed COVID-19. Additionally, the CDC still recommends that vaccinated individuals follow all other current guidance, including wearing a mask and social distancing.

New Mask Laws & Guidance

On January 29, 2021, President Biden signed the Executive Order of Protecting Worker Health and Safety, which requires mask wearing in federal buildings. The CDC also issued an order requiring mask wearing on public transportation.

The CDC also recently updated the COVID-19 resources and added an “Improve the Fit and Filtration of Your Mask to Reduce the Spread of COVID-19” section. This guidance provides tips and suggestions for improved mask wearing. The CDC shares that wearing a second cloth mask on top of a first medical procedure mask (to create a “double mask”) provides better protection to both the wearer and others compared to wearing a cloth or medical procedure mask alone. This is not a formal recommendation at this point, but is provided as information to help improve the effectiveness of mask wearing.

OSHA COVID-19 Update

OSHA has now issued updated and comprehensive COVID-19 guidance titled “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace”. This new guidance is aimed at non-healthcare businesses and includes the following:

  • Employers should provide all workers with face coverings at no cost, unless their work task requires a respirator.
  • Face coverings are simple barriers to help prevent your respiratory droplets or aerosols from reaching others. Not all face coverings are the same. The CDC recommends that face coverings be made of at least two layers of a tightly woven breathable fabric, such as cotton, and should not have exhalation valves or vents.
  • Employers should implement COVID-19 prevention programs in the workplace, which include: conducting a hazard assessment; identifying a combination of measures that limit the spread of COVID-19 in the workplace; adopting measures to ensure that workers who are infected or potentially infected are separated and sent home from the workplace; and implementing protections from retaliation for workers who raise COVID-19 related concerns. The guidance also recommends that employers:
    • Assign a workplace coordinator to address COVID-19 issues;
    • Determine measures that will limit the spread of COVID-19 in the workplace, including engineering controls, administrative policies, and additional personal protective equipment (PPE);
    • Establish a system for communicating effectively with workers in a language they understand, including a system for employees to self-report COVID-19 symptoms or exposure; and
    • Educate and train workers on COVID-19 policies and procedures.

Employers should review their policies and practices to make sure they align with the OSHA guidance.

EEOC Guidance on Vaccines

The Equal Employment Opportunity Commission (EEOC) has updated its "What You Should Know About COVID-19 and the ADA, the Rehabilitation Ac, and Other EEO Law" Q&A section to include information about COVID-19 vaccinations. The new section addresses how employers that require vaccinations for workers should respond to any employee unwilling to receive a vaccination because of a disability or a sincerely held religious belief. 

Employers wishing to mandate vaccines in the workplace are advised to proceed cautiously and consult with an employment attorney prior to implementing any mandatory policy.

Federal Updates February 2021

FFCRA Tax Credits Extended Through March 2021

The Families First Coronavirus Response Act (FFCRA) expired on December 31, 2020. Under the FFCRA, employers with fewer than 500 employees were required to pay Emergency Paid Sick Leave and Emergency Family Medical Leave to eligible employees, based on the established reasons and criteria.

While the FFCRA ended December 31, the tax credits under the Consolidated Appropriations Act (CAA), were extended through March 31, 2021. This means that employers are no longer required to pay FFCRA benefits, but still have the option to pay FFCRA benefits through March 31. Employers may still receive the tax credit reimbursement for FFCRA payments made from January 1 – March 31, 2021.

Contact the HR Helpline if you have any questions about the FFCRA related tax credits or options.

EEO-1 Data Collection Starts in April

Due to the COVID-19 pandemic, the EEOC suspended the required submittal of the 2019 EEO-1 data. Instead, the EEOC communicated that both the 2019 and 2020 EEO-1 data would be collected in 2021. The EEOC has now announced the EEO-1 portal will open in April.

As a reminder, employers with 100+ employees (and federal contractor and subcontractors with 50+ employees) are required to submit an annual EEO-1 report with employee counts by job category, race and gender.

The exact date the portal will open and the submission deadline will be posted on the EEOC home page at www.eeoc.gov in the near future. DCSI will provide further details are they are made available.

OSHA COVID-19 Citations

The Department of Labor’s Occupational Safety and Health Administration (OSHA) announced that it had issued citations arising from 244 inspections for coronavirus-related violations across the U.S., resulting in proposed penalties of more than $3.3 million. According to OSHA, fines for coronavirus-related citations have ranged from $1,928 to $32,965.

While OSHA has not implemented specific coronavirus workplace safety standards, employers must still comply with OSHA’S existing standards for pandemic-related safety risks. Under the existing standards, employers are required to provide a work environment that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”

The OSHA inspection violations included failures to:

  • Provide a medical evaluation before a worker is fit-tested or uses a respirator
  • Perform an appropriate fit test for workers using tight-fitting respirators
  • Assess the workplace to determine if COVID-19 hazards are present or likely to be present, which will require the use of a respirator and/or other Personal Protective Equipment (PPE)
  • Establish, implement, and update a written respiratory protection program with required worksite-specific procedures
  • Provide an appropriately sized/type of respirator and/or other PPE to workers when necessary to protect the health of employees
  • Train workers to safely use respirators and/or other PPE in the workplace, and retrain workers about changes in the workplace that might make previous training obsolete
  • Store respirators and other PPE properly in a way to protect them from damage, contamination, and, where applicable, deformation of the face piece and exhalation valve.
  • For any fatality that occurs within 30 days of a work-related incident, report the fatality to OSHA within eight hours of finding out about it
  • Keep required records of work-related fatalities, injuries, and illnesses

Employers should carefully review these violations to ensure you have policies and practices that align with OSHA regulations and provide a work environment free from recognized hazards.

Executive Order 13950 is Rescinded

President Biden revoked Executive Order (EO) 13950, which was enacted in September 2020 by former President Trump. EO 13950 applied to federal contractors and prohibited certain types of workplace diversity training. Specifically, it required all new and amended federal government contracts to include language prohibiting the contractor from implementing any workplace training that endorsed what the Order deemed “divisive concepts,” including that an individual, by virtue of his or her race or sex, is prone to behaviors that are inherently racist or sexist.

President Biden’s new Executive Order on Advancing Racial Equity and Support for Underserved Communities Through the Federal Government, rescinds EO 13950 in its entirety and states that it is the policy of the Federal Government to “pursue a comprehensive approach to advancing equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality.”

Federal Contractors have 60 days to suspend, revise, or rescind any action related to or arising from Executive Order 13950. 

Federal Updates January 2021

EEOC GUIDANCE ON COVID-19 VACCINE

On December 16, the Equal Employment Opportunity Commission (EEOC) updated the Q&A titled "What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws". This document was developed in March and has been expanded throughout the pandemic. The December update includes a section on the COVID-19 vaccination and how it interacts with various equal opportunity laws, including the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and the Genetic Information Nondiscrimination Act (GINA).

The EEOC guidance is important and it is equally important for employers to consider all the risks and factors before determining if vaccines are voluntary or required. Employers who are considering requiring the COVID-19 vaccination should contact the HR Helpline for assistance.

FFCRA EXPIRED DECEMBER 31

The Families First Coronavirus Response Act (FFCRA) expired on December 31, 2020. Any leave taken beyond December 31, even if it is for a qualifying reason, and even if the leave began before December 31, is not FFCRA leave.

The following steps are recommended as FFCRA ends:

  • Identify your company’s strategy for handling COVID-19 related leave requests, under existing or perhaps new policies. Ensure consistency among similarly-situated employees.
  • Communicate with employees about FFCRA ending. Explain their leave options effective January 1, 2021 and the process to request time off for COVID-19 related leave under your company policies.
  • Engage with employees who have been using the child care leave provisions of the FFCRA to establish expectations going forward, since many schools and child care providers remain closed.
  • Be aware of any applicable state and local laws which may provide leave rights in COVID-19 related situations. A number of states and municipalities have established their own laws similar to the FFCRA. Some of these ended December 31, while others are still in effect moving into 2021.

CDC PROVIDES UPDATED QUARANTINE GUIDANCE

The Center for Disease Control (CDC) recently updated its guidance, reducing the quarantine period after an individual has had close contact with someone with COVID-19. While the CDC still endorses 14 days as optimal length for quarantine, the new guidance states the quarantine can be discontinued earlier under the following scenarios:

  1. After day 10 without testing; or
  2. After day 7 after receiving a negative test result (the test must occur on day 5 or later).

If the reduced quarantine period is utilized, employees should be directed to continue monitoring symptoms for the full 14 days after the initial exposure.  Employers may choose to continue to require employees to quarantine for the full 14 days after an exposure and should follow any state or local requirements.

Federal Updates December 2020

I-9 FLEXIBILITY EXTENDED AGAIN THROUGH DECEMBER 31

Last month we reported that the flexibility permitted for I-9 document verification was scheduled to expire on November 19, 2020. The Immigration and Customs Enforcement (ICE) has now announced that the remote virtual verification option will be extended through December 31, 2020.

The ICE will continue to allow a “virtual” review of identity and work eligibility documents when completing Form I-9 Section 2 verification or Section 3 reverification. Virtual reviews can be conducted via a video call, email, or fax. This exception only applies to employers and workplaces that are operating remotely. If there are employees physically present at a work location, all I-9 related documents must be viewed in person. The virtual I-9 completion must be completed within three (3) days of hire.

Once normal operations of returning to the physical workplace have occurred, employers will have three (3) days from the date the employee returns to the workplace to inspect I-9 documents in-person.

Employers are also advised to maintain written documentation of remote onboarding and telework policies.

CDC CLARIFICATION ON RETURNING TO WORK

As the Center for Disease Control (CDC) continually updates guidance on employees returning to work, there have been some discussion about allowing essential workers to return prior to the standard quarantine period. On November 16, 2020, the CDC clarified its guidance regarding permitting critical infrastructure workers (essential workers) to return to work before the end of the standard 14-day quarantine period following exposure to COVID-19.

The CDC reiterated its standard recommendation that all individuals who have been exposed to a person with suspected or confirmed COVID-19 should quarantine for 14 days. The CDC then clarified that the possible exception to this would be asymptomatic essential workers who have not tested positive for COVID-19 and stated “reintegrating exposed critical infrastructure workers who are not experiencing any symptoms and have not tested positive back into onsite operations should be used as a last resort and only in limited circumstances, such as when cessation of operation of a facility may cause serious harm or danger to public health or safety.”

The CDC added that this guidance aligns with new scientific evidence, evolving epidemiology and the need to simplify the assessment of risk for employers. The CDC specifically sited:

  • Increased evidence that infected people pose a transmission risk without symptoms or before the onset of recognized symptoms;•
  • Ongoing community transmission in many parts of the country;
  • A need to communicate effectively to the general public; and
  • Continued focus on reducing transmission through social distancing and personal prevention strategies.

Critical infrastructure employers should review policies and procedures for returning asymptomatic exposed employees back to work, keeping in mind that state and local orders, and guidance from state and local health departments and safety agencies, may impose different and more restrictive requirements.

Employers who plan to use the exception to the 14-day quarantine period should document the impact on operations such as how and why business operations might cease, and if applicable, the potential impact on health and safety if exposed, asymptomatic employees are held out of work for a 14-day quarantine period.

Employers should also ensure plans and protocols are in place for additional safety precautions, including pre-screening, health monitoring, and preventive measures.

Employer Record-Keeping Requirements Relating to COVID-19

Employers should make sure they are aware of new and enhanced recordkeeping requirements that have resulted from COVID-19. The minimum record-keeping requirements for most employment records currently range from one to three years, but vary depending on the type of document and the regulatory agency. New recordkeeping requirements that have resulted from COVID-19 include:

Families First Coronavirus Response Act (FFCRA)

  • Records relating to paid sick leave and expanded family and medical leave must be maintained for four (4) years.
  • The regulations also require employers to create documents in certain circumstances:
    • If an employee orally requests paid sick leave or expanded family or medical leave, the employer is required to document that request and retain it for the four (4) year period.
    • If the employer denies a request, that denial has to be documented and retained for four (4) years.
  • Records needed in order to claim tax credits must be maintained for four (4) years:
    • Documents showing how the employer determined the amount of paid sick leave and expanded family and medical leave paid to employees that are eligible for the credit, including records of work, telework, and paid leave;
    • Documents showing how the employer determined the amount of qualified health plan expenses that were allocated to wages;
    • Copies of any completed IRS Forms 7200 the employer submitted to the IRS (Form 7200 is the form that qualifying employers file in advance to receive the refundable tax credits for qualified leave and the employee retention tax credit);
    • Other documents needed to support the request for tax credits pursuant to IRS applicable forms, instructions, and information for procedures that must be followed to claim a tax credit.

Occupational Safety and Health Administration (OSHA)

  • If an employee acquires COVID-19 at work, a record of the case must be kept by covered employers for five (5) years.
  • Cases that must be recorded include:
    • Confirmed cases of COVID-19;
    • Cases that are work-related, as defined under current OSHA guidance which requires a reasonable investigation on the part of the employer; and
    • Cases that meet one of the general recording criteria of requiring medical treatment or missed workdays.
  • Health monitoring systems such as taking an employee’s temperature or requiring employees to complete a questionnaire regarding their health that constitute medical records, must be maintained for the employee’s length of employment, plus thirty years. (To constitute a medical record under OSHA, the record must have been made to be made or maintained by a physician, nurse, or other health care personnel or technician.)

Employers will also want to maintain records of complaints, investigations, and subsequent actions related to COVID-19. In light of these changes, it is advisable that employers that this time to create or update record-retention policies to reflect the required records and the required length of retention.

FSA Notice Requirement for California Employees

Employers with employees residing in California are now required to provide notification to employees about deadlines for withdrawing funds from flexible spending accounts (FSAs). The new law specifically requires employers to notify FSA participants “of any deadline to withdraw funds before the end of the plan year.”  The law was effective January 1, 2020. Some of the details including the timing and content of the notices are unclear or open to interpretation.

Notice must be provided in two different forms and one of the forms of notification may be electronic. Examples of permissible notification forms include: e-mail, telephone, text message, mail, or in-person. The notice requirement applies to all FSAs, including dependent care, health care, and adoption assistance FSAs.

Employers who offer FSAs to employees in California will want to take the following steps:

  • Identify if you have any employees in California who have a FSA.
  • Identify claim submission deadlines for employees employed through the end of the plan year as well as employees who terminate early.
  • Review when and how you communicate claim submission deadlines to employees. To comply with the new law, the notice must be given in two different forms.
  • Contact the HR Helpline for questions or assistance with notification.

Federal Updates November 2020

NEW OSHA GUIDANCE ON HOSPITALIZATIONS AND DEATHS

The Occupational Safety and Health Administration (OSHA) has issued guidance to clarify employers’ obligations to report COVID-19 cases resulting in hospitalization or death. The new guidelines require diligence on the part of employers.

Reporting Hospitalizations
Under the new guidance, employers must promptly report hospitalizations caused by workplace exposure if they determine the in-patient hospitalization occurred within 24 hours of the workplace exposure. The 24-hours reporting clock starts when the employer knows that the employee has been hospitalized and that the reason for the hospitalization was a work-related case of COVID-19.

Employers must first determine if a COVID-19 case is work-related. Employers should apply the current OSHA guidance to determine whether a workplace exposure “more likely than not” caused the employee to contract COVID-19. (Refer to the “OSHA Requirements for COVID-19 Cases” article in the July Federal Compliance Update.)

Reporting Deaths
OSHA’s new guidance also requires employers to report COVID-19 fatalities within eight (8) hours, when the death occurs within 30 days of the employee’s work-related exposure. The employer’s eight (8) hour reporting clock starts once the employer knows that the employee has died, and that the cause of death was a work-related case of COVID-19.

This new guidance should clarify some of the reporting obligations for employers. Employers should keep in mind that some states may have stricter COVID-19 reporting requirements than the federal OSHA rules.

OFCCP PUBLISHES COMPLIANCE AUDIT LIST

The Office of Federal Contract Compliance Programs (OFCCP) recently published its Corporate Scheduling Announcement Lists (CSALs) of supply and service contractors and construction contractors. This is the list of contractors that the OFCCP intends to audit for compliance with Executive Order 11246, section 503 of the Rehabilitation Act, and the Vietnam Era Veterans' Readjustment Assistance Act. The CSAL lists are a courtesy notification of impending compliance evaluations that may include reviews such as compliance checks, compliance or establishment reviews, reviews of affirmative action programs, as well as focused reviews on section 503 compliance, VEVRAA, accommodations, and/or promotions. The CSAL lists are available on the OFCCP website, and identify the type of audit that may be conducted.

Visit https://www.dol.gov/agencies/ofccp/compliance-checks/scheduling-list for the scheduling lists and additional resources. Employers have at least 45 days’ notice of reviews from the date the CSAL lists are published.

CDC FURTHER DEFINES “CLOSE CONTACT”

On October 21, 2020, the Centers for Disease Control and Prevention (CDC) broadened the definition of “close contact” for purposes of COVID-19 contact tracing and quarantine requirements.

The original CDC guidance defined a “close contact” as a person spending 15 consecutive minutes within six feet of an infected person starting from 2 days before illness onset until the time the patient is isolated.

The revised guidance defines it as “someone who was within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period starting from 2 days before illness onset until the time the patient is isolated.” The key change is that the 15 minutes of exposure is now cumulative over a 24-hour period.

Employers will now need to think about how to maintain the six foot spacing, but also how to manage employee interactions to prevent interactions within six feet that cumulatively add up to more than 15 minutes of contact. Some possible modifications include limiting the number of employees allowed in shared spaces at one time, staggering breaks and shifts, and limiting access to things such as elevators and entry and access points.

For states requiring contact tracing, any employee conducting the contact tracing review should be trained on the new definition of “close contacts”. Company policies and/or procedures may also need to be revised to reflect the new definition.

Federal Updates October 2020

FFCRA REVISION

Effective September 16, 2020, the U.S. Department of Labor (DOL) revised the Families First Coronavirus Response Act (FFCRA). The key components of the FFCRA are the Emergency Family and Medical Leave Expansion Act (“EFMLA”) and the Emergency Paid Sick Leave Act (“EPSLA”). In recent weeks, New York state courts have ruled that some components of the FFCRA are unlawful. The DOL has accepted the court’s ruling to apply nationwide.

Following are the initial FFCRA regulations and the revised regulations. The most significant change pertains to healthcare organizations (#3).

  1. Initial law: Leave is denied to employees when their employer had no work for them to do (i.e. while on furlough)
    • Revision: No change to the law. The DOL reaffirmed that EPSLA and EFMLEA leave may be taken only if the employer has work available from which an employee can take leave and that this applies to all 6 FFCRA qualifying reasons.
  2. The regulations overly restricted employees’ right to take paid leave on an intermittent basis.
    • Revision: No change to the law. The DOL reaffirms that intermittent leave under FFCRA can only be taken with employer approval and is only permitted for the child care qualifying reason.
  3. The DOL’s definition of a “health care provider” employee for whom leave could be denied was overboard and conflicted with the FFCRA’s definition.
    • Revision: The DOL revised the definition of “healthcare provider” to include only employees who meet the definition of that term under the Family and Medical Leave Act regulations or who are employed to provide diagnostic services, preventative services, treatment services or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care. This means employees who work for a healthcare provider and provide non-healthcare services (i.e. Receptionist, IT Manager, Maintenance staff), do not qualify for the healthcare exemption for providing FFCRA leave. Healthcare employers should undertake a position-specific analysis to determine who meets the revised definition.
  4. The regulations improperly required that workers must provide supporting documentation for their need for FFCRA leave prior to taking it; and
    • Revision: The DOL clarified that employees must provide required supporting documentation as soon as practicable. This may be after leave has already begun for EPSLA purposes.

I-9 FLEXIBILITY EXTENDED THROUGH NOVEMBER 19

Last month we reported that the flexibility permitted for I-9 document verification was scheduled to expire on September 19, 2020. The Immigration and Customs Enforcement (ICE) has now announced that the remote virtual verification option will be extended through November 19, 2020.

The ICE will continue to allow a “virtual” review of identity and work eligibility documents when completing Form I-9 Section 2 verification or Section 3 reverification. Virtual reviews can be conducted via a video call, email, or fax. This only applies to employers and workplaces that are operating remotely. If there are employees physically present at a work location, all I-9 related documents must be viewed in person. Virtual I-9 completion must be completed within three (3) days of hire.

Once normal operations of returning to the physical workplace have occurred, employers will have three (3) days from the date the employee returns to the workplace to inspect I-9 documents in-person.

Employers are also advised to maintain written documentation of remote onboarding and telework policies.

EEOC ADDS NEW GUIDANCE ON COVID-19 AND THE ADA

On September 8, 2020, the EEOC updated its Technical Assistance Q&A Webpage. This new guidance provides clarification on how the Americans with Disabilities Act (ADA) and other laws interact with the COVID-19 pandemic. Following are highlights from the new guidance:

Screening and Testing

  • The ADA requires that any mandatory testing of employees be “job related and consistent with business necessity”. The ADA supports CDC guidance such as temperature checks before employees enter the workplace. If employers choose to screen or test only a particular employee or employees, the employer must has a reasonable belief based on objective evidence that the individual may have COVID-19.
  • The EEOC adds a reminder that employers may not ask employees whether they have family members with COVID-19 or who are suffering symptoms of COVID-19. These questions are a violation of the Genetic Information Nondiscrimination Act (“GINA”).

Confidentiality

  • Under the ADA, employers are require to keep all medical information about employees confidential, including whether an employee has symptoms of, or a diagnosis of, COVID-19. However, managers are permitted to report to these situations to the appropriate company official so they can take actions consistent with guidance from the CDC, such as notifying employees who may have been exposed.

Reasonable Accommodations

  • The guidance addresses reasonable accommodations for remote workers. If a request for a reasonable accommodation is made, the employer and employee should discuss an accommodation that would be warranted in the home environment. The EEOC advises that undue hardship considerations might be different relative to a home environment as opposed to the workplace.

MINIMUM WAGE FOR FEDERAL CONTRACTORS TO INCREASE TO $10.95 IN 2021

Effective January 1, 2021, the minimum wage for federal contractors and subcontractors increases from $10.80 per hour to $10.95 per hour. Fringe benefits paid to employees do not count towards the hourly minimum rate.

The minimum wage is part of Executive Order 13658, which applies to four major types of government contracts:

  • Construction contracts covered by the Davis-Bacon Act;
  • Service contracts covered by the Service Contract Act;
  • Concession contracts; and
  • Contracts in connection with federal property or land under which services are offered to federal employees, their dependents, or the general public.

The federal minimum wage requirement is broader than those employees who are directly performing work on the contract in two aspects:

  • The requirement applies to all employees performing “in connection” with covered contracts. An employee is considered to be performing in connection with a covered contract if the employee spends 20% or more of their hours in a workweek performing work connected to a covered contract. This mean positions like receptionists, administrative assistants, and document clerks could fall within the scope of the requirement.
  • While prevailing wages only increase when contracts are renewed, federal minimum wage increases take effective immediately. Any eligible employees below the new minimum wage must be brought up to $10.95/hour effective January 1, 2021.

OFCCP PROVIDES GUIDANCE REGARDING NON-BINARY EMPLOYEES AND APPLICANTS

The Office of Federal Contract Compliance Programs (OFCCP) recently released a FAQ addressing how federal contractors should handle counting employees and/or applicants in their AAP who identify as a gender other than male or female.

The OFCCP says the contractor should include the individual in its AAP, but exclude that individual’s data from the gender-based analyses required by OFCCP regulations. The OFCCP also states that federal contractors may not ask applicants or employees for documentation to prove their gender identity or transgender status.

DOL GUIDANCE ON PAYING NON-EXEMPT REMOTE WORKERS

Many employers are dealing with non-exempt employees working remotely and issues such as employees working off the clock, working unapproved overtime and/or performing unnecessary work while on the clock. The overtime rules under the Fair Labor Standards Act are the same for non-exempt employees working remotely or in the workplace.

The Department of Labor (DOL) recently advised that employers must pay non-exempt employees for all hours worked remotely if they know about it or have reason to believe that the work was performed. This means employers must exercise reasonable diligence to determine when non-exempt employees work by setting up a process for employees to report their time. This includes providing a timekeeping system or tool, and timekeeping procedures.

Timekeeping procedures should include the following:

  • Strict prohibition of off-the-clock work. Non-exempt employees should be instructed that all time spent working, including any time spent before or after the official working day, should be recorded.
  • Explanation that overtime must be approved in advance and the process to get approval for overtime. All overtime worked must be paid at time and one-half, unless state law requires additional payment. However, unauthorized overtime can be cause for disciplinary action for violating company policy.
  • Clear statement that refusing to report time accurately, or otherwise altering, falsifying or tampering with time records is prohibited and will result in discipline, up to and including termination.

Federal Updates September 2020

COVID-19 AND EMPLOYMENT RISK

As employers try to navigate the many new laws and guidance related to COVID-19, companies should proceed carefully with employment practices that could result in lawsuits and other risks. Following are aspects to avoid:

  • Some employers have asked employees to sign waivers of liability to mitigate the risk if an employee later contracts COVID-19 and sues. These waivers are not recommended, primarily because they are ineffective and may do more harm than good. Waivers won’t bar worker’s compensation claims since workers’ compensation is governed by state statutes. In most states, an employee cannot preemptively waive work-related claims, so any waiver would be unenforceable.
  • Recently workplace lawsuits related to COVID-19 highlight the risks when employers do not respond to complaints, as well as a failure to warn employees who may have come in contact with the COVID-19 virus in the workplace. In Iniguez v. Aurora Packing Company, Inc., a male worker contracted COVID-19. His wife then contracted COVID-19 from her husband and died. The spouse filed a wrongful death case against Aurora Packing Company. In this case, the company failed in several areas:
    • Aurora Packing Company knew employees had contracted COVID-19 at its facility, but did nothing to prevent the spread of the virus in the facility. The company also failed to warn employees of a COVID-19 outbreak and failed to implement an infectious disease preparedness and response plan or infection prevention measures consistent with CDC and state department of health guidelines.
    • The company created risk, by choosing not to provide employees with PPE, implement engineering controls to prevent the virus from spreading, take reasonable measures to allow for social distancing, screen and monitor workers, implement and communicate leave policy, and provide handwashing breaks, hot water, and sanitizer.

These situations highlight the importance of employers focusing their efforts on putting recommended safety and health measures in place to protect employees, communicating measures and any cases to employees, and responding to employee complaints and concerns.

I-9 FLEXIBILITY ENDS SEPTEMBER 19

Starting in March 2020, the Immigration and Customs Enforcement (ICE) has allowed flexibility with the rules related to Form I-9 compliance. Specifically, the ICE allowed for the deferment of in-person, physical inspection of new hires’ identity and employment eligibility documentation. This flexibility will expire on September 19, 2020.

The ICE will continue to allow a “virtual” review of identity and work eligibility documents when completing Form I-9 Section 2 verification or Section 3 reverification. Virtual reviews can be conducted via a video call, email, or fax. This only applies to employers and workplaces that are operating remotely. If there are employees physically present at a work location, all I-9 related documents must be viewed in person. Virtual I-9 completion must be completed within three (3) days of hire.

Once normal operations of returning to the physical workplace have occurred, employers will have three (3) days from the date the employee returns to the workplace to inspect I-9 documents in-person.

Employers are also advised to maintain written documentation of remote onboarding and telework policies.

COVID-19 GUIDANCE FROM THE DEPARTMENT OF LABOR

The Department of Labor (DOL) has provided recent guidance related to the Fair Labor Standards Act (FLSA), Family & Medical Leave Act (FMLA) and Families First Coronavirus Response Act (FFCRA). Following are the highlights from this guidance:

Fair Labor Standards Act (FLSA)

  • The DOL reminds employers that non-exempt employees must be compensated for all time worked while telecommuting. Employers have less oversight when an employee works remote, so it’s important to make expectations and work hours clear to employees. Even if work is not authorized, non-exempt employees must be compensated for all regular and overtime hours. If employees perform work that is unauthorized, the employer should address that as a possible policy violation or take that opportunity to clarify work expectations.
  • Under the FLSA, exempt employees must perform exempt level work the majority of the time in order to maintain the exemption status. During national emergencies such as COVID-19, the FLSA relaxes this rule and allows exempt employees to perform non-exempt work if needed due to COVID-19. This is a temporary exception that only applies until the national emergency is lifted.

Family & Medical Leave Act (FMLA)

  • With the current pandemic, telehealth visits with a health care provider satisfy the FMLA’s requirement of an in-person visit for purposes of determining a “serious health condition.” The telehealth visit must include an examination, evaluation or treatment. This guidance and allowance applies only through December 31, 2020.

Families First Coronavirus Response Act (FFCRA)

  • The FFCRA paid sick leave and expanded FMLA requirements are cumulative for 2020. This applies to both the 80 hours of sick leave and the 12 weeks of expanded FMLA.
    • Example: If an employee uses their 80 hours of paid sick leave, is then furloughed, returns to work and a need arises for additional sick leave, the employee is not entitled to additional paid leave under the FFCRA.
    • Example: If an employee used 6 weeks of expanded FMLA during the spring of 2020 and needs additional leave in the fall because a child’s school or daycare is closed, the employee is entitled only to the amount of leave remaining (i.e. six weeks).

The Department of Labor’s FAQs related to COVID-19 were most recently updated on July 20, 2020 and are located at https://www.dol.gov/agencies/whd/pandemic.

FEDERAL CONTRACTOR UPDATES

FFCRA FOR SCA/DBA CONTRACTS
The Department of Labor recently issued FAQs to provide guidance on Families First Coronavirus Response Act (FFCRA) compliance for employers with federal government service contracts covered by the McNamara-O’Hara Service Contract Act (SCA) and federal construction contracts covered by the Davis-Bacon Act (DBA).

The FAQ’s provide clarification regarding what employers covered by the SCA or DBA must pay when employees take leave under the FFCRA, using either Emergency Paid Sick Leave (EPSL) or Emergency Family and Medical Leave (EFML).

In summary:

  • If an employee is using only EPSL or EFML (under the FFCRA) the employer is not required to include the fringe benefit cash equivalent in the employee’s pay rate. (Note: Employers that provide health insurance rather than the cash equivalent must continue to provide the employee with insurance while the employee is on paid FFCRA leave.)
  • If an employee is using FFCRA leave and also using paid sick leave, vacation, or holiday hours provided by the SCA or under the terms of Executive Order 13706, then the employer must continue to provide SCA health and welfare payments to the employee or any applicable health and welfare benefit, Davis-Bacon fringe benefits, or monetary equivalent required by the executive order for the hours paid under the executive order.

VETS-4212 DUE SEPTEMBER 30
As a reminder, the VETS-4212 report is due September 30, 2020. Contractors and subcontractors who enter into, or modify a contract or subcontract with the federal government, in the amount of $150,000 or greater are required to report annually on their affirmative action efforts in employing veterans. The VETS-4212 reports employee headcount for a pay period in July or August of the current year.

The 2020 VETS-4212 online reporting platform is now open and will remain open through September 30, 2020.

NEW LOST WAGES ASSISTANCE PROGRAM

On August 8, 2020, President Trump issued an executive memoranda establishing the Lost Wages Assistance (“LWA”) program, which is a new unemployment benefit intended to replace the recently-expired $600 per week Federal Pandemic Unemployment Compensation (“FPUC”) payment.

The LWA program is intended to extend from August 1 through December 31, 2020. DCSI will be offering an HR:30 webinar on this topic. Watch for the upcoming communication about this training or visit www.dynamiccorp.com/training.

Federal Updates August 2020

NEW COVID RELATED FAQS FROM THE DEPARTMENT OF LABOR

The Department of Labor (DOL) has continually expanded and updated FAQs related to COVID-19. The most recent FAQs were added on July 20, 2020. As of today, the following helpful FAQs can be accessed at https://www.dol.gov/agencies/whd/pandemic:

  • Families First Coronavirus Response Act (FFCRA): Questions and Answers (97 FAQs)
  • COVID-19 and the Fair Labor Standards Act: Questions and Answers (19 FAQs)
  • COVID-19 and the Family and Medical Leave Act: Questions and Answers (13 FAQs)

Following are some key highlights from the latest guidance:

  • FFCRA question #94: The DOL provides guidance on restoring employees to work after FFCRA sick leave. An employee returning from sick leave who has interacted with a COVID-infected person, may be required to telework or take leave until they have tested negative for COVID-19. However, this requirement must apply to all employees exposed to a COVID-infected person, whether or not the employee has taken any type of leave.
  • FFCRA question #96: The DOL clarifies that furloughed time does not count as time on FFCRA or FMLA leave. Under the FFCRA, employees are entitled to up to 12 weeks of expanded family and medical leave. If an employee used five (5) weeks of that leave before being furloughed, the employee would be eligible for seven (7) additional weeks of leave if they have a qualifying reason to take it.
  • FFCRA question #97: The DOL addresses an employer returning furloughed employees to work. Employers who are reopening and returning furloughed employees to work may not extend an employee’s furlough simply because the employee would need to take FFCRA leave if they are called back to work. The DOL expressly states that employers may not discriminate or retaliate against employees for the use of FFCRA leave, and may not use the anticipated need for FFCRA leave as a negative factor in an employment decision.
  • COVID-19 and the FMLA #13: The DOL addresses the requirement of COVID-19 tests before returning employees to work. The DOL states that employers may require an employee returning from FMLA to get a COVID-19 test before returning to work, as long as this testing requirement applies to all employees returning from any type of leave, whether FMLA or non-FMLA.
  • COVID-19 and the FLSA #15: The DOL addresses pay for flexible telework schedules. An employer who allows employees to telework with flexible hours during the COVID-19 emergency does not need to count the entire regular workday as hours worked. For example, an employee and employer could agree on a telework schedule of 7–9a.m., 11:30–3 p.m., and 7–9 p.m. on weekdays. In this instance, the employees would be compensated for hours actually worked, which would be 7.5 hours.

FEDERAL CONTRACTORS MUST SUBMIT VETS-4212

Earlier this year, the Equal Employment Opportunity Commission (EEOC) postponed the 2020 EEO-1 filing deadline due to the COVID-19 pandemic. The EEO-1 report is expected to be due sometime in 2021. The exact filing deadline has not been communicated at this time.

The VETS-4212 filing deadline for 2020 is still set as September 30, 2020. This deadline is not expected to be postponed. While the EEO-1 filing is different from the VETS-4212 filings, many employers use the information obtained in the EEO-1 report to help prepare the VETS-4212 report. In light of this, federal contractors may wish to prepare now for the September 30, 2020 filing deadline.

The 2020 VETS-4212 online reporting platform will open on August 1, 2020. Employers can submit their VETS-4212 report between August 1 and September 30, 2020.

NEW FMLA FORMS AVAILABLE FOR EMPLOYERS

The Department of Labor (DOL) recently published a series of optional forms for employers to provide required notices to employees, and for employees to provide certification of their need for leave. The new forms are intended to be simpler and easier to understand for employers and employees.

It’s important to remember that the FMLA does not require the use of any specific form or format. Employers may use the old FMLA forms or the updated versions. Also, employers cannot require an employee who has already submitted acceptable FMLA forms to fill out a new form.

The following Notice and Certification forms were updated effective June 2020 and have been added to the HR Toolkit. They are located in the FMLA subfolder of the “No. of Employees 50-99” and “No. of Employees 100+” folders.

Notice Forms

  • Eligibility Notice, form WH-381 – This informs the employee of his/her eligibility for FMLA leave or at least one reason why the employee is not eligible. Changes includes the addition of definitions of key terms such as “spouse” and “parent”, along with an explanation of FMLA rights and obligations.
  • Designation Notice, form WH-382 – This informs the employee of whether or not the FMLA leave request is approved as well as the amount of leave that is designated and counted against the employee’s FMLA entitlement. An employer may also use this form to inform the employee that the certification is incomplete or insufficient and that additional information is needed. The revised form now includes a blank section for employers to explain what information is needed for “Incomplete or Insufficient” medical certifications and when that information is due.

Certification Forms
The DOL has updated the following FMLA certification forms. The changes are designed to make the forms easier to complete and to require health care providers to include more details on the type of medical condition and the duration of the leave.

  • Employee’s serious health condition, form WH-380-E – for use when a leave request is due to the medical condition of the employee.
  • Family member’s serious health condition, form WH-380-F – for use when a leave request is due to the medical condition of the employee’s family member.
  • Qualifying Exigency, form WH-384 – for use when the leave request arises from the foreign deployment of the employee’s spouse, son, daughter, or parent.
  • Military Caregiver Leave of a Current Service Member, form WH-385 – for use when requesting leave to care for a family member who is a current service member with a serious injury or illness.
  • Military Caregiver Leave of a Veteran, form WH-385-V – for use when requesting leave to care for a family member who is a covered veteran with a serious injury or illness.

IRS Provides Guidance on Qualifying Wages under the FFCRA

The Internal Revenue Service (IRS) recently released guidance for employers on reporting qualifying wages paid to employees under the Emergency Paid Sick Leave Act (EPSLA) and Emergency Family and Medical Leave Expansion Act (EFMLEA). Both laws are part of the Families First Coronavirus Response Act (FFCRA) that was passed on March 18, 2020.

The IRS guidance clarifies that FFCRA qualifying leave wages paid to employees must be added to the sum of wages reported in Boxes 1, 3 (as applicable), and 5 of Form W-2. Additionally, the IRS states that employers must separately report three categories of leave wages in Box 14 (or on a separate statement), labeling them using IRS model or similar language.

Employers should contact their CPA or visit the IRS website for additional information.

 

 

Federal Updates July 2020

EEOC Provides Guidance on Returning to Work

The Equal Employment Opportunity Commission (EEOC) recently updated their “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and other EEOC Laws,” publication to include reminders for employers as they return employees to the workplace. These reminders provide guidance to help employers stay in compliance with anti-discrimination laws.

Following are some of the highlights from the guidance:

  • Anti-Harassment Reminders
    • Remind employees that harassment will not be tolerated and to encourage anyone who experiences or witnesses workplace harassment to report it to management.
    • Managers in particular should be reminded of their roles in watching for, stopping, and reporting any harassment or other discrimination,
    • Managers should watch for harassment or other discrimination and should be alert to demeaning, derogatory, or hostile remarks directed to employees who are or are perceived to be of Chinese or other Asian national origin, including about the coronavirus or its origins.
  • Accommodation Reminders – Disability, Age, Childcare Responsibilities, Pregnancy, Religion
    • Inform employees about who to contact if they need to request an accommodation for a disability that they may need upon return to the workplace.
    • If employees request alternative screening methods due to a medical condition, employers may request information/documentation to establish that the condition is a disability, what specific limitations require a disability, and the need for an accommodation.
    • While the Age Discrimination in Employment Act (ADEA) does not require accommodation for older workers due to age, the EEOC has indicated that employers may provide flexibility to workers age 65 and older, even if this results in younger workers ages 40-64 being treated less favorably in comparison.
    • Employers should be careful that accommodations or “flexibilities” are not provided differently based on sex or other EEO-protected characteristics. For example, male employees cannot be treated less favorably than female employees with respect to flexibility based on childcare responsibilities based on gender-related assumptions about caretaking responsibilities.

The updated EEOC publication is located here.

New COBRA Requirements

The Department of Labor (DOL) has made two recent changes that impact employers’ responsibilities pertaining to COBRA.
Employers who offer health insurance are required to provide employees and their families with notices explaining their COBRA rights.

  • The DOL has revised the model COBRA notices to include information about the advantages of enrolling in Medicare prior to or in lieu of COBRA continuation coverage.
    • Action Required: Begin providing the DOL’s revised model COBRA notice to employees when they enroll in health insurance.
  • The DOL has also temporarily extended certain COBRA administrative deadlines in response to the COVID-19 outbreak.
    • The COBRA election period. Under COBRA, employees and dependents who lose active coverage as a result of a qualifying event, such as termination of employment or reduction of hours, normally have 60 days to elect continuation of coverage after receiving a COBRA election notice. Under the rule, the 60-day timeframe doesn't start until the end of the Outbreak Period.
    • The COBRA premium payment period. COBRA enrollees normally have 45 days from their COBRA election to make the first premium payment, and subsequent monthly payments must be made within a 30-day grace period that starts at the beginning of each coverage month. The new rule extends the initial premium payment and grace period deadlines beyond the Outbreak Period.
    • Note: the Outbreak Period is defined as March 1, 2020 until the end of declared COVID-10 national emergency, or another date if provided by the agencies in future guidance.
    • Action Required: Include a supplemental disclosure with your COBRA notices explaining that individuals will have 60 days after the end of the Outbreak Period to elect and pay for COBRA. It’s important to note that no extension was granted for the 14-day deadline for plan administrators to furnish COBRA election notices.

OSHA Requirements For COVID-19 Cases

The Occupational Safety and Health Administration (OSHA) originally only required specific industries to record COVID-19 cases. With the increase in outbreaks, OSHA now requires all employers to record COVID-19 cases if a reasonable investigation shows that the illness is work related. Under the Revised Enforcement Guidance for Recording COVID-19 Cases, all employers must investigate how an employee contracted COVID-19 to determine if it should be reported to OSHA.

Under OSHA’s recordkeeping requirements, a COVID-19 case is recordable if it is confirmed to be COVID-19 as defined by the CDC, is work related under, and involves one or more of the general recording criteria set forth in OSHA regulations.

Employers are not expected to undertake extensive medical inquiries into an employee’s case. The guidance directs employers to conduct a reasonable investigation by:

  • asking the employee how he or she believes the illness was contracted,
  • discussing the employee’s work and out-of-work activities that may have led to the illness, and
  • reviewing the employee’s work environment for potential circumstances of exposure.

If after conducting a reasonable, good faith investigation and weighing all reasonably available evidence the employer cannot determine if it is more likely than not that exposure in the workplace played a role in causing the illness, then the employer is not required to record the COVID-19 illness.

Federal Updates June 2020

Form I-9 Temporary Rules

The U.S. Department of Homeland Security (DHS) has developed accommodations for employers related to Form I-9 processes and the challenges employers are facing during the pandemic. Employers must remember that these accommodations are temporary and specific steps must be taken to stay in compliance.  Following are the temporary rules and obligations:

  • DHS issued a temporary suspension on the requirement of employers to physically review the I-9 identity and employment authorization documents for employees who are working remotely or taking other social distancing precautions. The original expiration date was set for May 19. This has now been extended an additional 30 days.
    • Employer Obligation: Employers must complete the otherwise-required physical examination of documents within three (3) business days of the business returning to normal operations. Visit DCSI’s April Compliance Update (add link) for the required steps to take advantage of this temporary suspension.
  • DHS has outlined specific expired identity documentation that may be accepted to complete the Form I-9 employment eligibility verification process. List B identity documents that expired on or after March 1 (and are not otherwise automatically extended) can be used as acceptable document on a temporary basis.
    • Employer Obligation: Within 90 days of the end of this temporary rule, the employee must present a valid, unexpired, identity document to replace the temporarily-acceptable expired document used initially and Form I-9. Employers must complete the reverification section of the I-9 at that time.
  • Employers who have received Notices of Inspections (NOI) from the US Immigration and Customs Enforcement (ICE) are granted an extension to the response period. The ICE initially granted an extension to May 19. This has now been extended an additional 30 days.
    • Employer Obligation: Employers must comply with the extended response deadline.

As a reminder, as of April 30, all employers are required to use the new October 2019 Form I-9 when verifying new hires. There is no requirement to update existing I-9s with the new form. The U.S. Citizenship and Immigration Services (USCIS) has released a revised “Handbook for Employers: Guidance for Completing Form I-9" which includes instructions for the new I-9 form.

DOL removes Commission-Based Retail and Service Industry Lists

The Fair Labor Standards Act (FLSA) outlines the classifications of positions which are exempt from overtime compensation for time worked in excess of 40 hours per workweek. For commission sales employees, the only exemptions that may apply are the outside sales or retail and service industry exemptions.

Under the FLSA, retail or service establishments are defined as establishments where 75% of the annual volume of sales of goods and/or services are not for resale and are recognized as retail sales or services in the particular industry. The retail and service exemption has had a very narrow focus and has relied on extensive listings of retail and service establishments to determine if the business qualifies for the exemption.

The Department of Labor (DOL) has now withdrawn the non-exhaustive lists of establishments that were potentially eligible for or excluded from the retail or service establishment exemption. This change will allow employers in the retail and service industries to review and possibly reclassify their inside sales employees compensated on commission as exempt from overtime requirements under the FLSA.

Employers should consult with legal counsel or contact the HR Helpline before reclassifying employees’ exemption status.

EEO-1 Report

Employers with 100+ employees (and federal contractor and subcontractors with 50+ employees) are required to submit an annual EEO-1 report with employee counts by job category, race and gender. Due to the COVID-19 pandemic, the EEOC has announced that both the 2019 and 2020 EEO-1 data will be collected in March of 2021.

Additional information and the exact due date will be posted on the EEOC home page at www.eeoc.gov and the EEOC will send notification letters to eligible EEO-1 filers. DCSI will provide further details are they are made available.

Revised OFCCP Disability Form Goes Into Effect August 4

The Office of Federal Contract Compliance Programs (OFCCP) has published a revised Voluntary Self-Identification of Disability form. Federal contractors and subcontractors have until August 4, 2020 to being using the new form for applicants and employees.

Under Section 503 of the Rehabilitation Act, federal contractors and subcontractors with at least 50 employees and contracts of $50,000 or more are required to invite all applicants and employees to self-identify as people with disabilities. Contractors also have an annual goal of 7% of the workforce in each job group self-identified as individuals with disabilities.

The revised form is intended to be more streamlined and to increase the response rate of individuals voluntarily disclosing their disability status. The form is now one page (instead of two), lists different examples of disabilities, and removes the reasonable accommodation notice.

The English version of the revised form is provided here. The form is also available in Spanish and other languages on the OFCCP website.

Federal Updates May 2020

Employees Complaining about Work Conditions is Protected Activity

Under the National Labor Relations Act (NLRA), employees of private employers are permitted to express complaints and act together to try to improve their working conditions. These complaints can be made verbally, in writing (including social media) and to various entities.
Employers will want to keep the NLRA in mind as they face COVID-19 challenges and workplace changes. Employee complaints about safety, the availability of personal protection equipment (“PPE”), sanitization procedures, or other COVID-19 concerns could qualify as protected activity.

In a recent case, a Maine Coast Regional Health Facilities employee sent a letter to the editor of the local newspaper expressing concerns about staffing shortages. The hospital then terminated the employee for violating its media policy, which prohibited employees from talking to the media about the hospital without the involvement of the public relations department.

The NLRB ruled that the hospital’s media policy was unlawful and could not restrict activity that was protected under the NLRA. The hospital was charged with unlawful termination and was ordered to reinstate the employee to her former position and provide back pay for the time out of work.

Employers will want to take the following steps:

  • Proceed cautiously when employees express concerns about working conditions within and outside of the workplace. Even if employees express concerns in a rude manner or in a way that seems offensive to the company, this may be protected activity.
  • Make sure your Media and Social Media policies do not prohibit employees from expressing concerns about management, pay, or other working conditions.
  • Contact DCSI for assistance with possible protected concerted activities.

 

Federal Updates April 2020

Temporary Suspension of I-9 Documents Physical Inspection

The U.S. Department of Homeland Security (DHS) has temporarily suspended the requirement for employers to physically inspect work authorization documents when completing the I-9 Employment Eligibility Verification form for new hires.

Immigration employment law requires employers to review the employee’s identity and employment authorization documents in the employee’s physical presence. During the pandemic, DHS has suspended this requirement for employees who are working remotely or taking other social distancing precautions.

Any employer who wishes to follow this temporary suspension of the physical presence requirement should take the following steps:

  • Create a written notice of this remote inspection policy and provide notice to each employee who is hired under these guidelines.
  • Remotely inspect the I-9 Section 2 work authorization documents for new hires. Some examples of remote inspection include email, fax and video conference.
  • As with the physical inspection of documents, remote inspection must occur within three (3) business days of the employee’s start date.
  • Maintain copies of the authorization documents.

When normal operations resume, employees hired using the remote I-9 inspection procedures must report to the employer within three (3) working days to have a physical inspection of the Section 2 documents. At that time, the employer should notate “Due to COVID-19, documents were physically examined on [DATE].” in the “Additional Information” field in Section 2.

EEO-1 Filing Date Still Not Set

Employers with 100+ employees (and federal contractor and subcontractors with 50+ employees) are required to submit an annual EEO-1 report. Historically, employers submitted the “Component 1” report which includes employees counts by job category, race and gender. The last EEO-1 Component 1 report was due May 31, 2019. The due date has not been set for 2020.

In 2019, the EEOC added a “Component 2” report that was due September 30, 2019 and included specified compensation data for previous calendar years. Since that time, the EEOC has announced that Component 2 data will not be collected in the future.

The EEOC intends to collect Component 1 data going forward and is working with the Office of Management and Budget to obtain approval for this collection. DCSI will keep you updated on the approval status and due date for the EEO-1 Component 1 report.

Federal Updates March 2020

New I-9 Form

Effective May 1, 2020, all employers must start using the new U.S. Citizenship and Immigration Services (USCIS) Form I-9.  The form is labeled with the version date “Rev. 10/21/2019” and can be used now rather than wait until May 1. A revised Spanish version and additional information are available at I-9 Central.

The new version includes the following minor changes to the paper version, fillable Adobe version, and instructions:

  • Paper version Form I-9 – updated version date (now “Rev. 10/21/2019”) and the Office of Management and Budget date
  • Fillable Adobe Form I-9 – updated the names of two countries in the drop-down fields in Section 1 and the Issuing Authority field in Section 2 when selecting a foreign passport
  • Revised Instructions:
    • Clarified who can act as an authorized representative on behalf of an employer
    • Updated USCIS website addresses
    • Provided clarification on acceptable documents for Form I-9
    • Updated the process for requesting paper Forms I-9
    • Updated the DHS Privacy Notice
    • Clarified that a company does not need to insert “N/A” on unused lines in the List A, B and C columns

Other Requirements & Best Practices:

  • I-9 Forms should be retained separately from employee files. A common best practice method is to maintain I-9s in two separate binders (or electronic files) for active employees and terminated employees.
  • Employers must retain I-9 forms for three (3) years after the date of hire, or one (1) year after the date employment ends, whichever is greater.
  • Employers should establish a retention and “tickler” process, such as a quarterly purge of I-9 documents that are outside of the retention requirement.

Federal Updates February 2020

OSHA Deadlines and Obligations

Depending on the company size and industry, employers have specific requirements under the Occupational Safety and Health Administration (OSHA). Certain low-risk industries (OSHA Exempt Industries) are exempt from these OSHA requirements.

Covered employers have the following obligations:

  • Employers with 11 or more employees are required to post the 2019 OSHA 300A (Summary or Work-Related Injuries and Illnesses) from February 1 to April 30 in a location that is visible to workers.
  • Employers with 250 or more workers, as well as companies with 20-249 workers in industries with historically high rates of injury, including the construction, manufacturing, transportation, and healthcare industries are required to electronically submit the 2019 OSHA 300A (Summary or Work-Related Injuries and Illnesses) by March 2, 2020. The electronic submission is made through OSHA’s Injury Tracking Application (ITA) at the ITA Launch Page.
  • Employers must retain the OSHA 300A summaries for five (5) years and also maintain (1) a list of each recordable workplace injury on the OSHA 300 log, and (2) a detailed report for each recordable workplace injury on the OSHA 301 incident report. The OSHA 300 log and OSHA 301 incident report are not required to be filed electronically.

Contact DSCI for assistance or questions pertaining to OSHA obligations.

Revised 2020 W-4

The IRS has released the 2020 W-4. Due to changes in tax law, the revised version no longer includes the withholding allowances section. The IRS reports the new design is intended to increase transparency, simplicity, and accuracy of the form.

Employers should ensure you are using the 2020 W-4 for all new hires and current employees. W-4 2020

Final Rule Issued on Joint Employer Status

The U.S. Department of Labor’s Wage and Hour Division (“WHD”) has published the Final Rule regarding joint employer status under the Fair Labor Standards Act (FLSA). The rule goes into effect March 16, 2020 and provides guidance for determining joint employer status when an employee performs work for his or her employer that simultaneously benefits another individual or entity.

The rule looks at a four-factor test to determine if a joint employer relationship exists. Joint employers can be held jointly liable for FLSA wage and hour obligations.

Contact DSCI if you have any potential joint employment situations.

SECURE Act Offers Retirement Options For Small Employers

The Setting Every Community Up for Retirement Enhancement Act of 2019 (the SECURE Act) went into effect January 1, 2020. This law includes changes to retirement plan laws and is intended to expand retirement plan coverage options for small businesses.

The SECURE Act includes the following key components:

  • Multiple Employer Plans - Small businesses may have limited abilities to provide retirement plans for employees due to the cost, complexity, and potential legal risk of qualified plans. In 2018, multiple employer plans (MEP) were established to allow small companies to sign up for a centrally administered retirement plan whose sponsor takes on the burdens of choosing investment providers, tracking contributions and account balances. The SECURE Act expands upon this with a new MEP called a "pooled employer plan" (PEP). Pooled employer plans, unlike other MEPs, will not be limited to employers that are in the same industry or geographic area, have a degree of common ownership, or contract with the same PEO. MEP is effective for plan years beginning on or after January 1, 2021.
  • Part-Time Employees – The Act gives part-time workers a greater opportunity to participate in 401(k) plans. Starting January 1, 2024, employees who have completed more than 500 hours of service in each of three consecutive 12-month periods but have not otherwise met the plan's service requirement for participation, are eligible to participate in 401(k) plans.
  • Distribution Rules – The Act includes changes to the minimum required distribution rules by postponing the age at which distributions must begin from 70½ to 72 and shortening the period over which beneficiaries can spread distributions.

Contact your benefits broker for more information about the SECURE Act.

 

Federal Updates January 2020

Final Rule on Exclusions from "Regular Rate" Calculations

On December 16, 2019, the Department of Labor (DOL) published a Final Rule on the calculation of the “regular rate of pay” for overtime pay under the Fair Labor Standards Act (FLSA). The new rule goes into effect January 15, 2020.

Under the FLSA, non-exempt employees must be paid an overtime rate based on the “regular rate of pay” for each workweek. The Final Rule outlines that the following perks, benefits and other miscellaneous payments to employees may be excluded from the “regular rate of pay” calculation:

  • Payments for unused paid leave, including vacation, sick leave, and holiday pay;
  • Payments for time that is not hours worked, including bona fide meal periods during which no work is performed;
  • Gym memberships or access to gyms and fitness classes;
  • Wellness programs;
  • “Callback” pay and other similar payments when an employee responds to a call from the employer to perform extra work, as long as the payments are not prearranged;
  • Reimbursed expenses, including cellphone plans, credentialing exam fees, organization membership dues;
  • Employer contributions to benefit plans for accident, unemployment, legal services or other events that could cause future financial hardship or expense;
  • Financial wellness programs or counseling;
  • Discounts on retail goods or services;
  • Tuition benefits, reimbursement plans or student loan forgiveness programs, as long as the programs are available to employees regardless of their hours worked or services rendered;
  • Sign-on bonuses and longevity bonuses;
  • Cost of office coffee and snacks;
  • Parking spaces and parking benefits;
  • Restrooms and locker facilities;
  • Adoption assistance (including financial assistance, legal services or information and referral services); and
  • Reimbursed travel expenses (even if not incurred “solely” for the employer’s benefit, as long as the expenses are incurred on or for the employer’s behalf, convenience or benefit).

The rule further clarifies that employers may exclude discretionary bonuses from the calculation of the regular rate of pay. The Final Rule specifies that a truly “discretionary” bonus is one that is given to an employee at the sole discretion of the employer. The DOL includes examples of discretionary bonuses in the final regulations 

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Favorable Decisions from the National Labor Relations Board

The National Labor Relations Board (NLRB) released three new court decisions that favor employers.  The first two items apply to all employers, while the third decision applies only to organizations with unions.

DECISION 1: “Workplace policies covering confidentiality during workplace investigations are lawful.”

  • What this means:  The NLRB previously protected an employee’s right to discuss workplace concerns, including workplace investigations. In this court decision, the NLRB supported the employer’s policy that employees who make complaints and those who are interviewed are expected to maintain confidentiality regarding these investigations. The NLRB stated the right to engage in protected, concerted activity about workplace concerns was outweighed by the business justification of the investigation confidentiality rules.
  • Action: While this is good news for employers, you should still tread cautiously in restricting employees who report complaints or are interviewed in a workplace investigation from discussing the investigations. A best practice is to strongly encourage those involved in a workplace investigation to maintain confidentiality regarding the investigation. (Remember that workplace investigations should always be conducted by DCSI or a qualified HR professional or legal counsel.)

DECISION 2: “Employers can restrict employees use of e-mails for non-business purposes.”

  • What this means: This decision supports that employees do not have a statutory right to use their employer-provided e-mail for non-work purposes, such as discussing their wages and benefits or forming a union.
  • Action:  Make sure your Electronic Communications and E-mail Policies state that e-mail and other information on company equipment are considered assets of the company and that e-mail is not intended for personal use. Ensure you apply all rules and expectations consistently within your workforce.

DECISION 3: “Employers can stop deducting and remitting union dues after the expiration of a collective bargaining agreement.”

  • What this means: Employers have no obligation to continue deducting union dues from employees’ paychecks and paying them to the union, following the expiration of the Collective Bargaining Agreement (CBA).
  • Action: Employers with union employees should contact legal counsel for assistance, if this situation applies to you.

Contact DSCI for assistance with any of the situations above or for questions regarding these NLRB decisions.

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"Ban the Box" for Federal Contractors

The Federal Fair Chance Act (the Act) goes into effect January 1, 2020, and applies to federal contractors and federal agencies. The Act prohibits federal contractors/agencies that have openings for positions within the scope of federal contracts, from inquiring about or seeking criminal history information from an applicant until after a conditional job offer has been extended. The Act is intended to give ex-offenders and those with past criminal convictions a better chance of obtaining employment by eliminating or at least deferring pre-employment inquiries into an applicant’s criminal history.

There are exceptions to the Act, which include:

  • positions related to law enforcement and national security duties,
  • positions requiring access to classified information,
  • positions that, by law, require a federal contractor or the federal government to obtain criminal history information before extending a conditional job offer, and
  • positions that involve interaction with minors, access to sensitive information or managing financial transactions.

 

Employers will want to take the following steps:

  • Begin using the attached “Ban the Box” Application for Employment for any positions within the scope of federal contracts.  Employers may use the standard Application for Employment for the exception positions listed above.
  • Sign up for DCSI’s Federal Contractor webinar on Tuesday, February 25 to learn more about federal contractor obligations.

 

State Updates

The following states have regulatory or HR Toolkit updates this month. If you are registered for The HR Toolkit® in any of these states, you will receive separate communication with these updates.

  • Colorado
  • Illinois
  • New Jersey
  • Ohio

 

 

Federal Updates december 2019

What Employee Comments Are Protected Activities?

Under the National Labor Relations Act (NLRA), employees are permitted to express complaints and act together to try to improve their pay and working conditions, even if their speech may seem inappropriate.
In Mexican Radio Corporation v. National Labor Relations Board, several employees complained about the manager’s disrespectful and demeaning treatment. A few months later, an employee sent a group email saying she was quitting. The e-mail contained obscenities and encouraged employees to stand up for their rights against the manager. Four employees “replied all” to the email agreeing with the departing employee’s sentiments. Within the next week, the four employees were terminated for insubordination. The courts ruled that the “reply all” response from the four employees was a protected concerted activity.
Employers will want to take the following steps:
• Proceed cautiously when employees express concerns about working conditions in e-mail, on social media platforms, or in other forms of expression.
• Make sure your social media policies do not prohibit employees from expressing concerns about pay, management, or other working conditions.
• Contact DCSI for assistance with possible protected concerted activities.

 

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Updated Job Accommodation Network (JAN) Toolkit

The Job Accommodation Network (JAN) Toolkit is a comprehensive online resource to assist businesses in complying with the Americans with Disabilities Act (ADA). The toolkit is funded by the Department of Labor and has recently been updated.
Visit the Job Accommodation Network (JAN) Toolkit for information about potential reasonable accommodations, as well as tips on the ADA interactive process.

https://askjan.org/toolkit/ 

 

 

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Coming Soon: Revised Voluntary Self-Identification Form

Under Section 503 of the Rehabilitation Act of 1973, federal contractors and subcontractors are required to use the voluntary self-identification form when soliciting disability status from applicants and employees. The current self-identification form expires in January 2020.

The Office of Federal Contract Compliance Programs (OFCCP) has proposed the following changes to the new self-identification form:

• Removal of the reasonable accommodation language,
• Alphabetized and expanded list of disabilities, and
• Addition of language regarding the 7% workforce goal and requirement to ask employees to update their disability status every 5 years .

DCSI will provide the updated form when it is finalized and available.

 

 

Federal Updates November 2019

What Employee Comments Are Protected Activities?

Under the National Labor Relations Act (NLRA), employees are permitted to express complaints and act together to try to improve their pay and working conditions, even if their speech may seem inappropriate.
In Mexican Radio Corporation v. National Labor Relations Board, several employees complained about the manager’s disrespectful and demeaning treatment. A few months later, an employee sent a group email saying she was quitting. The e-mail contained obscenities and encouraged employees to stand up for their rights against the manager. Four employees “replied all” to the email agreeing with the departing employee’s sentiments. Within the next week, the four employees were terminated for insubordination. The courts ruled that the “reply all” response from the four employees was a protected concerted activity.
Employers will want to take the following steps:
• Proceed cautiously when employees express concerns about working conditions in e-mail, on social media platforms, or in other forms of expression.
• Make sure your social media policies do not prohibit employees from expressing concerns about pay, management, or other working conditions.
• Contact DCSI for assistance with possible protected concerted activities.

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Updated Job Accommodation Network (JAN) Toolkit

The Job Accommodation Network (JAN) Toolkit is a comprehensive online resource to assist businesses in complying with the Americans with Disabilities Act (ADA). The toolkit is funded by the Department of Labor and has recently been updated.
Visit the Job Accommodation Network (JAN) Toolkit for information about potential reasonable accommodations, as well as tips on the ADA interactive process.

https://askjan.org/toolkit/

 

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Coming Soon: Revised Voluntary Self-Identification Form

Under Section 503 of the Rehabilitation Act of 1973, federal contractors and subcontractors are required to use the voluntary self-identification form when soliciting disability status from applicants and employees. The current self-identification form expires in January 2020.

The Office of Federal Contract Compliance Programs (OFCCP) has proposed the following changes to the new self-identification form:

• Removal of the reasonable accommodation language,
• Alphabetized and expanded list of disabilities, and
• Addition of language regarding the 7% workforce goal and requirement to ask employees to update their disability status every 5 years .

DCSI will provide the updated form when it is finalized and available.

 

 

Federal Updates October 2019

Final New Overtime Rule

The Department of Labor (DOL) has announced the final rule regarding overtime pay and earnings minimums under the Fair Labor Standards Act (FLSA). The new rule increases the earnings threshold for several exemption categories and allows employers to include a portion of bonuses to meet the minimum salary level. The following changes go into effect January 1, 2020:

  • The minimum salary for exempt executive, administrative, and professional employees increases from $455 per week to $684 per week (or from $23,660 per year to $35,568 per year. Employers may use nondiscretionary bonuses and incentive payments (including commissions) paid at least annually, to satisfy up to 10% of the standard salary level.
  • The total annual compensation requirement for “highly compensated employees” increases from $100,000 to $107,432.

Employers will want to take the following steps:

  • Determine which employees are currently classified as exempt and earn below the new minimum thresholds.
  • Consider the options to increase compensation to the new minimum thresholds or move impacted employees to non-exempt status.
  • Calculate the impact on budgets, future hiring, and other organizational matters.
  • Sign up for DCSI's complimentary webinar.

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EEOC Decision Regarding Component 2

The submission of compensation data for calendar years 2017 and 2018 (called Component 2) was due September 30, 2019. This is the first year compensation data has been required as part of the EEO-1 process. The EEOC has now announced that it will not renew the pay data collection requirement moving forward. The EEOC does plan to continue the EEO-1 component 1 data collection, which has been in place since 1966.

The EEOC is developing and submitting proposed recommendations to the Office of Management and Budget (OMB). A notice will be published following the review and approval by the OMB.

Employers can take this opportunity to use the Component 2 data to review compensation and identify any pay inequities in the workplace. DCSI is available to assist with pay equity analysis and strategies.

Contact the HR Helpline with any questions.

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New Federal Contractor Minimum Wage – Federal Contractors Only

The September 19, 2019 edition of the Federal Register includes updated minimum wage rates that must be paid to workers performing work on or in connection with federal contracts covered by Executive Order (EO) 13658.  Effective January 1, 2020, the new minimum wage for federal contractors increases from $10.60 to $10.80 per hour. The minimum wage for covered tipped employees performing work on or in connection with covered contracts increases from $7.40 to $7.55 per hour.

Keep in mind that most federal contractors/subcontractors who fall under the Service Contract Act (SCA) or Davis Bacon Act (DBA) have wage determinations which outline minimum wage and fringe benefit requirements.  Employers with qualified contracts should ensure they are following the SCA wage requirements outlined in the contract, wage determination letter, or SCA Directory of Occupations.

Please contact the HR Helpline for any questions or assistance.

Knowledge You Need/COVID-19

  • COVID-19 related materials are based on the best information and guidance available at the time they are provided.  Contact the HR Helpline for the most current information.
  • Email the HR Helpline at any time at: hr-help-u@dynamiccorp.com
  • Call the HR Helpline at: (888) 960-4918 or (904) 278-5383
  • Your exclusive HR Toolkit Promo Code for the month: MAYTK21

Knowledge You Need, April 15, 2021

OFF DUTY ACTIVITY ENDS IN SEXUAL HARASSMENT CLAIM

In a recent Tennessee court case, an employer was held liable for sexual misconduct at a private party that took place AFTER an employer-sponsored holiday party. As companies start to consider planning social gatherings or other employer-sponsored events, there are some important lessons to learn from this case.

In Phelps v. State, an employee sued her employer, the State of Tennessee, for sexual harassment and retaliation claims under the Tennessee Human Rights Act (THRA). She claimed sexual misconduct (including sexual assault) at an after-party following a company-sponsored Halloween party. The court ruled that the State could be liable for these “after-party” events, even though they took place after hours and away from the place of employment.

Kelly Phelps was a restaurant server at a state park facility. She attended a Halloween party organized by her restaurant managers. Alcohol was served and drink coupons were provided to employees. One of the attendees at the party was Josh Walsh, the assistant park manager. During the party, Walsh became drunk and proceeded to grope, molest, and make uncomfortable at least five women at the party. After the party ended, some employees and non-employees, including Phelps, attended an after-party at a maintenance worker’s residence, located on state park property. At the after-party, Walsh allegedly rubbed himself against Phelps on two occasions and made other lewd acts toward her.

Phelps and three other employees complained of sexual harassment by Walsh. Phelps complained about his behavior at the company Halloween party and the after-party. The State did not remove Walsh from his duties, and ultimately issued a written reprimand to Phelps for an “inappropriate article of clothing” she wore to the Halloween party. Phelps was the only employee written up for her party attire, despite other suggestive and salacious employee costuming.

The case went to court and the initial court ruled that Walsh’s conduct toward Phelps at the after-party was not sexual harassment and discrimination “in the workplace,” since it took place at a private residence, employees were not required to attend, and the social gathering was not connected to work. However, the Court of Appeals disagreed and stated that whether an employer can be held liable for a supervisor or co-worker’s sexual harassment occurring off-premises and/or after traditional work hours should consider the totality of the circumstances, including:

  • The proximity in time and space to the “traditional workplace”;
  • The relationship of the event to the employees’ work duties;
  • The extent to which the employer planned, promoted, or sponsored the event;
  • The degree to which employees were pressured or encouraged to attend the event and the number of employees in attendance;
  • The employer’s knowledge of any pattern of similar harassment by the offending employee under prior similar circumstances; and
  • Any other circumstances pertinent to the inquiry.

Considering the totality of the circumstances in the case at hand, the court found there was a sufficient connection between the workplace and the alleged after-party harassment to conclude that the sexual assaults perpetrated against Phelps did affect a term, condition or privilege of her employment. Among the factors the court found persuasive in reaching its decision were the proximity in space and time to the workplace; the pressure for employees to attend; the fact that the majority of the party and after-party attendees were employees; the State’s sponsorship of the party; the State’s provision of alcohol and encouragement for employees to buy and drink alcohol; and Phelps’ testimony that the after-party was a “continuation” of the State-sponsored Halloween party.

Takeaway for Employers
This case exemplifies that employers may have liability for conduct which occurs following employer-sponsored events, even if those events are off-duty and off-premises. Employers should take the following into account when planning company events:

  • Consider the potential risks of holding company events involving alcohol. If alcohol is served, be sure to limit the number of drinks and monitor employees’ behavior.
  • Provide Ubers or other safe rides home for employees at the end of the event.
  • Any after-work parties should not involve managers or be at a manager’s house.
  • When complaints of harassment are made, do everything possible to separate the reporting employee and the accused and investigate immediately.

Knowledge You Need, March 15, 2021

COVID WAIVERS – Would They Hold Up in Court?

As employees return to offices and places of business, companies are grappling with risk management related to COVID-19, including potential liability to employees who contract COVID-19 on the job. Due to the risk of lawsuits, some employers are wondering if they should consider requiring their employees to sign waivers to release employers from COVID-related liability.

Although the laws are still evolving in this area, these types of waivers will not hold up in many states due to state laws related to waiving claims, workers’ compensation laws, or due to existing protections from liability arising from negligent conduct. Each of these areas is explored below.

  1. STATE LAWS RELATED TO WAIVING CLAIMS. Many states prohibit an employer from enforcing a waiver of an employee’s claims related to a workplace injury or otherwise limit these waivers to claims arising from the employer’s negligence only. For example, New York courts have rules that agreements between an employer and an employee attempting to exonerate the employer from liability for future negligence (whether due to the employee or employers negligence) are void. California and Indiana have similar laws.
  2. WORKERS’ COMPENSATION. Generally, state workers’ compensation laws cover employees for injuries or occupational diseases arising from or occurring because of his employment that stem from an employer’s negligent. Most states will not enforce waivers of the right to receive these benefits, and some states deem such agreements to be contrary to public policy.   Whether COVID-19 is considered an “occupational disease” subject to workers’ compensation varies by state, and individual state laws may make distinctions depending on the date of contraction of COVID-19, the role of the employee, and other factors. To address this uncertainty, numerous states have passed laws or issued guidance stating that certain types of employees (in particular essential workers) who contract COVID-19 within specific timeframes are presumed to have contracted the disease through the course of their employment.
  3. OSHA COMPLAINTS AND ENFORCEMENT ACTIONS. An employer’s general duty to maintain a safe workplace cannot be waived. Specifically, the Occupational Safety and Health Act of 1970 requires employers to provide their employees with working conditions that are free of known dangers and OSHA has identified COVID-19 contracted in the workplace as a reportable injury.  In the event of an OSHA investigation or enforcement action, employers would not be permitted to deflect the responsibility for maintaining a safe work environment. OSHA requires employers to make a reasonable and good faith inquiry to determine whether it is “more likely than not” that workplace exposure played a causal role in a particular case of COVID-19, regardless of any waiver.

Bottom Line Considerations

  • Asking employees to sign waivers may serve as a reminder of the risks and precautions required in the workplace, even if they do not ultimately have the desired legal effect. However, given the limited enforceability, employers may want to consider the impact on employee morale and company image if such waivers are required.
  • Employers may want to monitor federal and state laws that are being proposed, which will provide legal protection for employers. Several states have enacted legislation to protect companies from liability stemming from COVID-19 exposure, including Georgia, Kansas, Louisiana, Mississippi, North Carolina, Ohio, Oklahoma, Tennessee, Utah and Wyoming. The protections vary, with many states providing enhanced protections for businesses that are deemed essential.
  • If an employer does utilize a waiver for its employees to sign, the employer should make sure the waiver: (1) is clear and unambiguous, (2) is written in language that can be easily understood, and (3) does not attempt to waive liability for intentional, reckless, or grossly negligent conduct. Employers should consult with legal counsel who actively monitor developments to ensure that the waiver incorporates the latest legal precedent and governance best practices.

Knowledge You Need, February 15, 2021

WHEN SAFETY OVERRIDES ADA CLAIMS

The following cases involve situations where employees claimed disability discrimination, but the claims were not founded due to valid employer safety concerns and requirements.

In the case of Holmes v. General Dynamics, the courts determined that an employee who is unable to comply with an employer’s valid workplace safety requirement is not a “qualified” individual under the Americans with Disabilities Act (ADA). Shelia Holmes worked for General Dynamics as a shelter fabricator. General Dynamics began requiring shelter fabricators to wear steel-toed shoes for protection from accidents. Holmes had diabetes and brachymetapodia and claimed it was unsafe for someone with her medical conditions to wear steel-toed shoes. Holmes provided a doctor’s note to support her position.

General Dynamics attempted to accommodate Holmes by investigating various customized-shoe options and different work assignments at the company. Ultimately, the company could not identify a reasonable accommodation that Holmes would agree to, so Holmes’ employment was terminated.

Holmes sued for disability discrimination under the Americans with Disabilities Act (ADA), alleging that wearing steel-toed shoes was never an essential function of her job and that she performed her job satisfactorily for years while wearing regular shoes. The Court determined that under the ADA, employers may require compliance with valid safety regulations, even if the regulations are not listed as an essential function of the job.

Key Takeaways:

The employer was correct in their actions due to the following:

  • In accordance with the EEOC, employers may require employees to wear certain articles of clothing to protect themselves, coworkers, or the public.
  • The employer engaged in the ‘interactive process’ with the employee and made multiple attempts to identify an accommodation.

In Owen vs. Union Pacific Railroad Co., co-workers observed a long-time trackman (Owen) struggling to get around, having trouble breathing, and having trouble kneeling and standing while performing his job. One of the co-workers shared his concerns with a group supervisor. The group supervisor then observed the trackman’s conduct, and contacted a railroad manager to report the trackman’s concerning behavior. After reviewing the concerns with managers and the company physician, the trackman’s manager pulled Owen off the job and sent him home in order to best protect himself and others. The manager instructed the trackman to undergo a fitness for duty examination, which was consistent with the railroad’s policies.

Owens was not permitted to return to work and then sued the railroad for violating the ADA. The court ruled that Owen failed to prove that he was considered disabled under the ADA, and failed to prove that his employer violated the ADA when it required him to undergo a “fitness for duty” medical exam following his removal from service.

Key Takeaways:

  • The job entailed physical requirements that were documented on the job description.
  • The railroad did a thorough job of observing and reacting to job-related concerns.
  • The courts found that the railroad’s safety concerns qualified as a legitimate, non-discriminatory basis for the trackman’s removal from service.
  • The medical examination did not violate the ADA because it was job-related, vital to the company’s business, and was a standard practice for like-situations.

Knowledge You Need, January 15, 2021

PAY EQUITY – A TOP PRIORITY

An area of recommended focus for 2021 is pay equity. Equal pay protections are constantly expanding at the federal, state and local level. All employers fall under the federal Equal Pay Act, which requires that men and women in the same workplace be given equal pay for substantially equal work. In addition, the number of state and local laws focus on pay inequity for females and minorities is rapidly increasing.

Many states and municipalities have enacted salary history bans to help eradicate pay inequity. Salary history bans are designed to prevent the continuation of pay inequities based on past salary. When employers rely on past compensation to determine new hire pay, this can perpetuate existing pay disparities among women and minorities. Salary history bans prevent employers from obtaining past salary information or inquiring about an applicant’s salary history.

The following states have salary history bans: Alabama, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, New Jersey, New York, Oregon, Vermont and Washington. The following cities/local jurisdictions also have salary history bans: San Francisco, CA; Kansas City, MO; New York City, NY; Albany County, NY; Suffolk County, NY; Westchester County, NY; Cincinnati, OH; Toledo, OH; Philadelphia, PA; and Columbia, South Carolina.

Some additional state laws are taking pay equity laws to a new level. A new California law now requires private employers with 100 or more employees to report employee pay data by gender, race, and ethnicity, to the Department of Fair Employment and Housing (DFEH) each year. Colorado has also enacted the Equal Pay for Equal Work Act (EPEWA), which narrowly limits the justifiable reasons for wage differences between men and woman who perform substantially similar work.

Employees who feel equal pay laws have been violated can file a charge with the Equal Employment Opportunity Commission (EEOC) or file a law suit. Many equal pay claims are class action suits where groups of employees file a charge together. Violations of pay equity laws can have a significant financial impact of unpaid wages, damages, and attorney fees.

Recommended Action:
To protect your organization and ensure you don’t have unjustified pay disparities, employers should consider obtaining a pay equity audit. Pay equity audits will determine if there are any unjustified pay disparities and allow employers to take necessary measures to remedy the inequities.

DCSI’s compensation experts can assist employers with pay equity audits. Contact the HR Helpline for additional information.

Knowledge You Need, December 15, 2020

2020 Highlights and Looking Ahead to 2021

The year 2020 will not be forgotten for many reasons. COVID-19 threw our country into a tailspin and has had a major impact on the economy and how we work together on a day to day basis. New short-term laws and requirements were developed as a result of COVID-19, including:

  • Families First Coronavirus Response Act (FFCRA), with 2 main components:
    • Emergency Family and Medical Leave Expansion Act
    • Emergency Paid Sick Leave Act
  • Coronavirus Aid, Relief, and Economic Security (CARES) Act, which included the Payroll Protection Act (PPA), stimulus checks, and the pandemic emergency unemployment compensation programs
  • The Department of Labor (DOL) and Occupational Safety and Health Administration (OSHA) provided ongoing guidance, in conjunction with the CDC.
  • The Department of Homeland Security (DHS) established temporary processes, allowing the remote verification of I-9 documentation.

A number of states and municipalities developed supplemental emergency response laws for employees not covered under the FFCRA. The vast majority of the federal, state, and local laws are set to expire on December 31, 2020. We can expect to see extensions of some of these laws and/or temporary laws to be replaced by permanent laws.

Here are other federal employment law highlights from 2020:

  • Effective January 1, 2020, the new minimum salary for exempt executive, administrative, and professional employees increased from $455 per week to $684 per week (from $23,660 per year to $35,568 per year).
  • Effective May 1, 2020, employers were required to start using the revised I-9 form (dated ‘Rev. 10/21/2019’).
  • The EEOC announced the annual EEO-1 report will not be collected in 2020. The EEO-1 for 2019 and 2020 will be collected in March of 2021.
  • In June 2020, the DOL developed improved FMLA Notices and Physician Certification forms.
  • In June 2020, the US Supreme Court ruled that gender identity and sexual orientation are protected under Title VII of the Civil Rights Act of 1964.

We head into 2021 with a new President and administration. As a result, businesses can expect to see some new areas of focus, while other current areas of focus will remain a priority.

DCSI is conducting a HR:30 session on December 18 called “Out with the Old, In With the New”.  Register for this complimentary session under the Training section.

Knowledge You Need, November 17, 2020

NEW GUIDANCE ON DONNING AND DOFFING

“Donning and doffing” refers to the act of putting on and taking off work-related personal protective equipment (PPE) and other health and safety gear. This does not refer to the quick process of putting on and taking off cloth masks, but rather more in-depth equipment and gear. The Department of Labor requires that employees are paid for the time it takes for donning and doffing.

This is an area that may be impacted by COVID-19 changes and safety measures. Employees who regularly wore PPE and other health and safety equipment may now be wearing new and additional types of equipment. In addition, employees who did not previously wear safety equipment may now be wearing equipment or gear.

This is a common area for compensation claims and many times these claims are filed as a class action. To make sure you are in compliance and to mitigate the risk of claims or non-compliance, employers should:

  • Determine if you have any jobs that require donning and doffing of equipment or gear.
  • Review your donning and doffing policies, and make sure they require employees to don and doff extra equipment on the clock.
  • Determine if you have COVID-19 changes that impact donning and doffing.
  • If employees obtain their equipment at work, make sure they retrieve it after clocking in and return it before clocking out.
  • Maintain a consistent process for donning, doffing, and retrieving equipment so employees are not “on the clock” earlier than they are supposed to be.

Knowledge You Need, October 15, 2020

OSHA Publishes Guidance on Face Coverings and Heat Illness Prevention

In April 2020, the CDC issued its recommendation that individuals wear masks to slow the spread of the pandemic. While masks can be an inconvenience in an office environment, there are additional challenges in work environments where employees are exposed to heat or other conditions.

The Occupational Safety and Health Administration (OSHA) aligns with the CDC and recommends that employers encourage workers to wear cloth face coverings to reduce the spread of COVID-19. OSHA further addresses the challenges posed by cloth face coverings for workers in hot and humid environments or while performing strenuous activities. In the most recently guidance, OSHA recommends that employers follow best practices to protect against the spread of COVID-19 and the risk of heat-related illness. These best practices include:

  • Acclimate new and returning workers (through rotation between jobs that require face coverings and those that do not) to environmental and work conditions while wearing cloth face coverings.
  • Allow workers to remove cloth face coverings when they can safely maintain at least 6 feet of physical distance from others.
  • Evaluate the feasibility of wearing cloth face coverings for each worker and consider alternatives such as face shields, when appropriate.
  • Increase the frequency of hydration and rest breaks in cooled environments.
  • Incorporate at least 6 feet of physical distancing into break areas by staggering breaks, spacing workers, or limiting the number of workers on break at a time, where feasible.
  • Encourage workers to use cloth face coverings that optimize fit and comfort and are made out of breathable, moisture-wicking materials.
  • Encourage workers to change cloth face coverings if they get wet, as wet face coverings make it more difficult to breathe and are not as effective. Provide clean replacement cloth face coverings or disposable face masks, as needed, for workers to change into throughout the work shift.
  • Plan for heat emergencies and train workers on heat stress prevention and treatment.
  • Avoid scheduling strenuous tasks during the hottest parts of the day and alter work shifts to cooler parts of the day, when possible.
  • Allow workers to utilize personal passive cooling devices such as ice vests.
  • Increase the frequency of communication to workers and encourage workers to monitor themselves and others for signs of heat illness.

Employers should consider these best practices and other possible ways to reduce the risk of heat-related illnesses, based on your particular workplace.

Knowledge You Need, September 15, 2020

Politics in the Workplace

As the presidential election nears, companies may likely face increased discussions about politics in the workplace. Employers may have concerns about the loss of productivity, lack of customer focus, or the impact on morale and working relationships, if they allow political discussions in the workplace.

Private companies should be aware of the laws pertaining to political activity in the workplace, in order to keep productivity and harmony during an election season.

Are employers required to allow employees to discuss politics in the workplace?
In most cases, no. While the First Amendment guarantees "freedom of speech" pertaining to government action, it does not limit the rights of private employers to regulate employee communications at work. Aside from the few exceptions listed below, there is no general right of "free speech" in a private employer workplace.

Many employers have policies that limit the discussion of political issues at work because of operational and legal risks. The potential for heated disagreements and inflammatory comments may increase in political related discussions. While there is no federal law that protects political discussions, conversations about politics can sometimes lead to claims of employer discrimination, harassment or retaliation that may violate federal or state discrimination laws.

More recently, political discussions have sometimes led to "bullying" behavior, when employees forcefully advocate their political opinions to unreceptive co-workers. This is also a form of harassment.

For these reasons, many employers elect to minimize these controversies by prohibiting political discussions in the workplace.

Exceptions to "No Politics at Work"
Following are exceptions to the principle that private employers may legally implement a "no political activity or discussions in the workplace" policy.

  1. The National Labor Relations Act (NLRA) restricts an employer's right to limit workers' communications about wages, hours and the terms or conditions of employment during non-work time in non-work areas. This applies to non-union employees and employers. Worker communications about matters such as pay, benefits and workplace safety are considered a "protected concerted activity” and are permitted by federal law. This means employee statements and actions concerning political issues and events outside the workplace can be protected if they have a direct connection to the workplace or to employees' terms and conditions of employment. One example of this could be the political topic of minimum wage, as this could impact an employee’s pay.  Conversations about political topics that are not related to employment-related issues may be restricted at all times, as long as any such rules are uniformly enforced.
  2. As it pertains to allowing employees to display or distribute political materials in in the workplace, employers may ban any non-work-related activities, including political activities. However, the same NLRA protection applies if political activities have a sufficient connection to the employment-related issues protected by the NLRA. For these “protected topics”, employers may prohibit the solicitation, distribution of literature on work time and in work areas, but cannot prohibit these activities on non-work time in non-work areas.
  3. Lastly, there are a few state laws pertaining to the discussion of politics in the workplace. These states have "free speech," "political activity" or "off-duty conduct" laws that give employees rights not provided by federal law. Employers should be aware of the laws in the states where employees work.  While not related to political discussions in the workplace, many states have laws that require employers to provide sufficient time off for voting and/or prohibit any type of discrimination or negative employment action for voting or not voting for a particular candidate or issue.

In light of these protections, policies restricting political conversations and activities in the workplace should be carefully crafted and uniformly enforced. Policies should include the following components:

  • While many political discussions may be prohibited, make it clear that NLRA protected activity is permitted. This means, discussions about political issues related to wages, hours and work conditions are permitted when all employees involved are on non-work time.
  • Prohibit the distribution of campaign materials and solicitations of money or support during work times in work areas. Your "no solicitation" policy should apply consistently to political campaign materials, union or union-organizing materials, and all non-work related solicitations.
  • Include a reminder that all employees are expected to behave in a respectful, civil and professional manner at all times and that discrimination and harassment are strictly prohibited in the workplace.

Make sure your supervisors are also trained on your policy. Discourage supervisors from engaging in political discussions with subordinates in order to minimize potential claims of discrimination, harassment or bullying.

DCSI is offering a free HR:30 webinar on “Time to Vote: Politics in the Workplace” on Wednesday, September 23 at 10:00am EDT.
Register at: https://register.gotowebinar.com/register/3540804983242366991.

 

Knowledge You Need, August 15, 2020

Handling COVID-19 Related Employee Complaints

As employers work to stay current with ever-changing public health orders and implement measures for a safe workplace, you may face concerns and/or complaints from employees related to health and safety. It’s important to proceed cautiously and properly handle employee complaints related to COVID-19. Some common complaints pertain to working remote versus working in the office, cleaning measures in the workplace, Personal Protective Equipment (PPE), and social distancing in the workplace.

Several states, including Colorado and Pennsylvania, have enacted whistleblower laws which provide legal protection for employees who raise concerns about health and safety related to COVID-19. This means employees in these states may file a legal claim against their employer if any adverse action or discrimination occurs as a result of raising reasonable concerns about workplace violations of government health or safety rules, or another workplace threat to health or safety. Other states may add these COVID-19 related whistleblower laws in the near future.

Whether your state has a COVID-19 related whistleblower law or not, the following guidelines can help address employee complaints and protect employers from legal challenges:

  1. Be sure you are following the latest local city and state COVID-19 safety guidelines.
  2. Implement health and safety measures, as recommended by OSHA and the CDC. The latest CDC guidance can be found at https://www.cdc.gov/coronavirus/2019-ncov/
  3. Communicate safety measures and expectations to employees. Regular communication can help put employees at ease.
  4. Listen to and respond to all employee complaints related to COVID-19 health and safety. Make modifications to your health and safety measures, as needed.
  5. Be consistent with rules and expectations related to returning to the workplace. Ensure your decisions are based on business needs and allow flexibility whenever possible.
  6. Don’t discipline employees for making complaints or expressing concerns to management or co-workers. Even if there is no state whistleblower law, this type of activity is protected in the private and public sector under the National Labor Relations Act.
  7. Contact DCSI for assistance in handling COVID-19 related employee complaints.

Knowledge You Need, July 15, 2020

COVID-19 and Older Workers

As the United States enters Phase 2 of returning to work, employers are working hard to ensure measures and practices are put in place to protect employees and reduce the spread of COVID-19. One employee population that is getting specific attention is older workers. We know that workers age 65 and older have an increased risk of having serious complications from COVID-19. The statistics have shown that 80% of the deaths related to COVID-19 are in adults age 65 or older.

While concern for employees is understandable and expected, employers must be careful not to treat older workers differently and possibly violate age discrimination laws. Here are some questions to help ensure you are following discrimination laws and not putting your organization at risk:

Question 1: Can you consider a worker’s age when deciding whether or not to call an employee back from a furlough?
Answer 1: No. Basing your decision not to bring an employee back based on their age is age discrimination and is a violation of the Age Discrimination in Employment Act (ADEA). The Equal Employment Opportunity Commission (EEOC) has also specifically stated that employers may not involuntarily exclude employees from the workplace due to COVID-19, even if the decision to exclude was for benevolent reasons, such as protecting employees who are subject to higher risk of severe illness from COVID-19.

Question 2: Many companies are allowing employees the option to work remote at this time.

(Part A) Can we make it mandatory for all employees aged 65 and older to work remote?
(Part B) What if an older employee does not want to return to work because they believe their age increases the risk of severe COVID-19 illness?

Answer 2:
• Part A – No. As long as older workers can still perform the job, they cannot be excluded from the workplace or forced to work remote simply because their age puts them in a higher risk category. If you are offering the option to all employees, older workers should certainly be given the option as well.
• Part B - In this situation the employee (not the employer) is raising concerns and making a request. An employer would not be discriminating against the employee by accommodating the employee’s request. The key here is that the employee needs to make the decision.

Question 3: Do older workers have a right to any accommodations because they are more at risk of severe COVID-19 illness?
Answer 3: As you know, the Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodation for disability. The ADEA does not require employers to reasonably accommodate employees because of their age. However, the EEOC recently issued guidance that employers are free to “provide flexibility” to workers age 65 and older. Some examples of flexibility that can be offered are telework, restructuring the employee’s job, or modifying the work schedule to limit exposure to others in the workplace.

The key is to be consistent and not base workplace practices and employment decisions on age. Remote work, scheduling, social distancing, face mask and other policies should be applied consistently to all employees.

Knowledge You Need, June 15, 2020

Title VII Now Covers LGBTQ Employees

The United States Supreme Court issued an important and impactful ruling today, which prohibits discrimination nationwide for LGBTQ employees. Until now, sexual orientation and gender identity have not been included as federally protected classifications. This changed today as the Supreme Court ruled that sexual orientation and gender identity are federally protected under Title VII of the Civil Rights Act of 1964 (Title VII).

Title VII Act prohibits employment discrimination based on race, religion, national origin and sex. While more than half of the states in the U.S. have local and/or state laws that prohibit discrimination based on sexual orientation and gender identity, it was previously unclear if Title VII’s discrimination “because of sex” applied to LGBTQ employees. Today’s Supreme Court ruling confirms that Title VII does include a prohibition against discrimination on the basis of sexual orientation, gender identity, and transgender status.

Required Actions:
Many companies already prohibit discrimination based on sexual orientation and gender identify. Employers will need to take this time to thoroughly review your practices and your culture.

  • Review your Equal Employment Opportunity policies to ensure sexual orientation and gender identity are included as protected classifications.
  • Review your hiring, training, promotion, performance management, and termination policies and practices to ensure you do not have any (intentional or unintentional) discriminatory practices.

June is national PRIDE month, so this is an ideal time to look at your Diversity, Equity and Inclusion program as a whole. DCSI will be offering 2 complimentary webinars on PRIDE and this recent Supreme Court ruling.

Sign up today:

HR:30 Celebrating Pride Month at Work

HR:30 It’s Official! Federal Law Protections for LGBTQ Employees

COVID-19 Update, June 2, 2020

COVID-19 Updates and Lawsuits

With the introduction of COVID-19 laws such as the Families First Coronavirus Response Act (FFCRA) and the Coronavirus Aid, Relief, and Economic Security (CARES) Act, we are starting to see legal challenges and lawsuits.

DCSI has developed training on these important COVID-19 updates to help employers stay in compliance and avoid legal claims. Be sure to sign up for this free webinar: dynamiccorp.com/events.  All previous COVID-19 sessions are also available as recordings in the COVID-19 section of our website.

The HR Helpline is available to assist you in understanding COVID-19 laws and implementing new policies to protect your business and your employees.

COVID-19 Update, May 15, 2020

COVID-19 and Returning to Work

As local, state and federal government leaders develop a phased approach to loosening COVID-19 restrictions, employers are trying to navigate how to respond and return employees to the workplace. At the same time, employees are continuing to deal with closed schools and child care facilities and some employees are expressing safety concerns about returning to the workplace.

OSHA and the CDC are continuing to provide guidance for businesses and employers. The most recent CDC guidance released on May 6 encourages employers to remain flexible with employees returning to the workplace. The White House Guidelines for Opening Up America advises employers to allow telework when possible during Phase 1 and Phase 2, and to return employees to work in phases.

Following are the key components of the CDC’s May 6 strategies and recommendations:

  • Implement flexible sick leave policies and supportive policies and practices, including:
    • Maintain sick leave policies that are flexible and align with public health guidance.
    • Protect older workers (65+) and employees with serious underlying health conditions by allowing telework or modifying jobs to minimize contact with customers and other employees. (Note: Employers should remember that while telework is encouraged, older workers should not be required to telework simply because of their age.)
    • Develop a Social Distancing policy to include flexible work arrangements, increasing the physical space between employees at the worksite, use signs or other visual cues to indicate how to remain 6 feet apart, prohibit handshaking, and close common areas where employees are likely to congregate.
    • Make information available about Employee Assistance Programs (EAPs) and connect employees to EAP resources as needed.
  • Consider conducting daily health checks
    • The CDC recommends requiring employees to take their temperature and check symptoms before coming into work each day. Another option is to take employee temperatures as employees arrive at work.
  • Conduct a hazard assessment of the workplace
    • Employers are encouraged to identify where and how workers may be exposed (i.e. conference rooms, workplace entrance, break rooms); then determine what engineering controls, workplace administrative policies, and personal protective equipment (PPE) are needed to address those hazards.
  • Encourage employees to wear cloth face coverings in the workplace, if appropriate
    • The CDC reminds employers that cloth coverings are not PPE, but will still help prevent the spread of germs to others. The CDC cautions that face coverings should be worn in ADDITION to social distancing.
  • The CDC has provided the CDC Example Controls table to help employers determine the most appropriate engineering, administrative and personal protective equipment (PPE) controls for the workplace.

Employers should proceed cautiously and be prepared to provide a good deal of flexibility, use a phased approach for employees returning to the workplace, and ensure frequent communication to employees.

DCSI continues to offer our free webinar series to assist our clients in navigating current workforce challenges during the COVID-19 pandemic: May/June Training Schedule

COVID-19 Update, May 1, 2020

COVID-19 Laws and Policies

As employers begin to navigate returning to work post COVID-19, many HR related policies and practices will need to be revised or developed.  DCSI has developed the following policies, which align with the OSHA return to work guidelines:

  • Infectious Disease Policy & Response Plan
  • Healthy Workplace Policy
  • Alternate Work Schedules & Arrangements

A new sub-folder titled "COVID-19 & Infectious Diseases” has been created under the Safety & Health folder. You will see the folder includes the policies listed above, along with the Families First Coronavirus Response Act (FFCRA) information and forms.

Contact the HR Helpline for assistance with COVID-19 related laws and in implementing new policies to protect your business and your employees.

COVID-19 Update, April 15, 2020

COVID-19 Update

The last Knowledge You Need/COVID-19 update outlined the Families First Coronavirus Response Act (FFCRA) that went into effect April 1, 2020. Since that time, we’ve also seen the introduction of the CARES Act, which includes multiple components to assist employees and employers during this pandemic. DCSI is available to assist you in understanding the HR related components of these laws.

As employers strive to operate businesses in the current environment, here are some important HR policies and practices to keep in mind:

Remote Work Policies & Procedures
Be sure you have a remote work policy that clearly outlines the expectations of working remotely. Some of the key components to include in a remote work policy are:

  • Hours and availability – Outline the expectation for “office hours”, availability and response time.
  • Work output - Establish and communication how work out, deliverables, and results will be monitored or evaluated.
  • Time tracking – It’s important that non-exempt employees are diligent about tracking and recording all time worked. Ensure employees know how to record time worked, especially if it is different from the process used prior to remote work. Communicate how breaks and meal periods will be handled for non-exempt employees. Breaks of less than 20 minutes should still be considered paid time, while a meal period of longer than 20 minutes is unpaid.
  • Confidentiality – Be sure to outline how client information should be protected, such as storing work documents in a locked cabinet or room, and
  • Agreement - Include a Remote Work Agreement, which employees sign to acknowledge that they understand the expectations outlined in the remote work policy.

Performance Management
Continue to follow your performance management processes, including setting goals, addressing performance concerns, and providing performance feedback to employees.

  • Goals – Take the time to review current goals to determine what needs to be modified, added or removed based on any limitations and well as changes in the status or focus of your business.
  • Maintain expectations – While it may be more challenging to address performance issues virtually, it’s important to hold employees accountable for meeting expectations and following company policies.
  • Evaluations – Determine any necessary changes to your quarterly or annual performance review process. Continue to provide verbal and written feedback to employees.

Communication
Two-way communication is more important than ever in a virtual environment and when employees are dealing with the stress and personal impacts of the pandemic.

  • Regular updates – Be sure to provide regular company and department-wide communication. Even if there isn’t much to say, it‘s important to let employees know that you are monitoring the latest information, you have appropriate precautions in place, and they have a way to ask any questions.
  • 1-on-1 meetings – A best practice is for managers to establish regular 1-on-1 sessions with their employees. These sessions should include discussions about work progress as well as any obstacles or challenges. This also helps create some normality in the work environment.
  • Get creative – Many companies are using video conferencing to stay connected to employees and enhance communication. Consider which types of conversations work best for video conferencing. Consider other new methods of communication such as e-newsletters or “weekly quick updates”.

DCSI continues to offer our free webinar series to assist our clients in navigating current workforce challenges during the COVID-19 pandemic: dynamiccorp.com/events 

COVID-19 Resources, April 1, 2020

Families First Coronavirus Response Act (FFCRA)

The Families First Coronavirus Response Act (FFCRA) goes into effect April 1, 2020.  All private employers with less than 500 employees, and most public employers, are covered under the Act. The FFCRA Employee Rights poster must be posted in a highly visible location along with your other employment law posters. The poster should be emailed to employees working remotely and can also be posted on your company internal or external website.

The required posters, along with other important information related to the FFCRA, is provided here for your reference and use:
• FFCRA Poster (non-federal employer)  FFCRA_Poster_WH1422_Non-Federal
• FFCRA Posters (federal employer) FFCRA_Poster_WH1422_Federal
• FFCRA Fact Sheet  Families First Coronavirus Response Act FACT SHEET
• FFCRA Leave Request Form  FFCRA Leave Request Form

DCSI has also developed a supplemental COVID-19 package that is available for purchase. Contact the HR Helpline to learn more about the supplemental COVID-19 package.

Knowledge You Need March 13, 2020

An Employer’s Flu and Coronavirus Response

Many of us are facing employee concerns regarding the recent outbreak of Novel Coronavirus (2019-nCoV). With daily media updates and the declaration of a global pandemic, it is imperative that employers strategize and prepare their workforces. Employees maintain confidence in a well-prepared organizational response, and DCSI is committed to supporting our HR Toolkit clients by offering the following topics for you to discuss internally:

  1. Education: Knowledge is the best defense against panic. As an organizational leader, take it upon yourself to stay in-the-know regarding local and regional response. Research facts, connect with your industry-specific networks, and stay abreast of reliable sources such as CDC, WHO, your state health department, and local emergency officials.
  2. A Healthy Worksite: Take inventory of your on-site risk factors. The single most effective tool against the spread of influenza and other viruses is hand washing. Keep your workforce healthy by posting proper hand washing posters and hand sanitizing stations throughout your organization. Consider risks applicable to your company such as required Personal Protective Equipment or interactions with customers.
  3. Addressing Employee Illness: Communicate common symptoms of COVID-19 with your workforce, specifically fever of 100.4 or higher, cough, respiratory distress, or difficulty breathing, and be clear that employees should STAY HOME if they exhibit any of these symptoms. Monitor your workforce. Immediately separate employees from co-workers and send them home if they report to work with these symptoms. Address each situation confidentially.
  4. Attendance Policies: In the usual course of business, most attendance policies stress the importance of being present at work. During pandemics, it may be necessary to make policy exceptions. Consider an exception to absence marks. Refrain from requiring physician notes. Do your part to be flexible. With flexibility and less fear of reprisal, employees are likely to refrain from reporting to work sick, therefore limiting exposure. Policy exceptions such as this are acceptable, assuming they are specific in duration and are carried out in a consistent, non-discriminatory manner. Assure that this policy is clear to prevent abuse.
  5. Employee Paychecks: Organizations must maintain compliance with the Fair Labor Standards Act (FLSA) at all times, even during pandemics. Contact the HR Helpline if you have questions regarding pay compliance of your exempt or non-exempt employees. Consider such situations as your organization closing, an employee being placed on quarantine, or the closing of schools. Can employees work from home, use PTO, or flex their schedule later in the same pay week to address the lost hours? Does your state require paid sick leave? Will your organization voluntarily provide paid time off if an employee is diagnosed with COVID-19?
  6. Work from Home: Working remotely during periods of high contagion may be appropriate. Clearly articulate which positions may work off-site, the productivity expectations, and communication protocol. Assure these decisions are based on non-discriminatory practice. If your workforce doesn’t regularly work from home, contact the DCSI Helpline for best practices in working remotely.
  7. Occupational Safety and Health Act (OSHA): Federal OSHA requirements mandate an organization’s responsibility to provide employees with workplaces that are “free from recognized hazards that are causing or likely to cause death or serious physical harm.” As an organization, you have a general duty to protect the welfare of your workforce.

Click here for a Sample Message to Employees

Knowledge You Need February 2020

Service Animals in the Workplace

An increasing number of people with disabilities use service animals to assist them with various everyday tasks. As the use of service animals has increased, more applicants and employees are requesting service animals as a reasonable workplace accommodation. This, combined with the increased use of emotional support animals, can leave employers a bit confused on how to handle these requests.

The Americans with Disabilities Act (ADA) section that applies to public accommodations defines a service animal as a dog (or sometimes a miniature horse) that is trained to perform tasks or do work for the benefit of a person with a disability. However, the ADA section that applies to employment does not define “service animals”.

Under the ADA, employees with disabilities are entitled to reasonable accommodations that will allow them to do their jobs, unless it would create an undue hardship on the employer.

HANDLING REQUESTS

The following guidelines can assist employers in handling ADA related requests for service or emotional support animals in the workplace:

  • Employers are not automatically required to grant a request for the use of a service animal by an employee or applicant. Instead, employers must consider the request for a service animal as they would consider any request for a reasonable accommodation.
    • Start the interactive process by gathering basic information about the employee’s condition and reasons for the request.
      Request medical documentation regarding the individual’s disability and functional limitations, as well as information about how the animal will assist the employee with his or her disability.
    • Request documentation about the animal’s training and health records, including vaccination history.
    • Consider the request, discuss alternate accommodations, and determine if it would create an undue hardship. If there is an alternative solution that would allow the employee or applicant to perform the essential functions of the job, the employer can offer the other accommodation instead of allowing the animal in the workplace.
  • Workplace policies prohibiting pets or animals in the workplace should be modified to allow for service animals as a potential reasonable accommodation.
  • Since service animals are not defined under the ADA, employers must consider requests for both service animals and emotional support animals. This also means that service/emotional support animals in the workplace is not limited to dogs, but may extend to any animal.

ASSIMILATING INTO THE WORKPLACE

If a request for a service or emotional support animal is granted, the following guidelines can assist in assimilating the animal into your workplace:

  • Set ground rules for animals and their owners, such as requiring that the animal does not damage property, cause disruptions, or endanger the health or safety of anyone on the premises.
  • Require that animals be house-trained and free from offensive odors.
  • Outline the expectation regarding supervision of the animal to ensure that the owner always has direct control and that no one else other than the owner becomes responsible for taking care of or watching the animal at the workplace.
  • Some employees may be afraid of or allergic to the animal. Employers can separate and protect all employees by providing private workspaces, allowing telecommuting, restricting the animal from certain areas, or providing air cleaners to reduce animal dander.
  • Educate employees about the dos and don’ts of interacting with service or emotional support animals so they do not interfere with the animal’s work or cause workplace disruptions.

Knowledge You Need January 2020

"Regarded As" Having a Disability

The Americans with Disabilities Act (ADA) provides protection for individuals with physical and mental disabilities, and also to individuals who are perceived as having disabilities. A recent court case shows how perceiving that an employee has a disability can create risks and liability for employers.

In Babb v. Maryville Anesthesiologists, one of the owners noticed Ms. Babb placing her face very close to the computer. When the owner asked Ms. Babb about it, she replied that she had a degenerative eye condition. Ms. Babb added that her eye condition did not impact her ability to perform her job. There were no performance concerns at this time.

The owners continued to inquire about Ms. Babb’s eye site and at one point stated they thought Ms. Babb might have a disability. A few months later, Ms. Babb made two errors that were unrelated to her eye sight and her employment was terminated.

The court ruled in Ms. Babb’s favor and determined that the termination was based on her disability. The primary reason was that there was evidence that the owners believed Ms. Babb had a disability. This evidence included an email that was sent to company employees following the termination that stated Ms. Babb had been “having major issues with her eyesight”.

Takeaways:

Once the employee replied that her condition did not impact her ability to perform the job, conversations about her vision should have stopped. The following are some important tips for handling disabilities and reasonable accommodations:

If an employer observes behaviors where they believe an employee may be struggling or have a need for a reasonable accommodation, the employer should ask the employee privately if he/she needs any type of accommodation. If the employee replies that no accommodation is needed, the employer should move forward with normal work expectations.
If an employee is having performance or behavioral problems, do not ask the employee if they have a disability. Bring the work performance or behavior concern to the employee’s attention. It is up to the employee to disclose if there is any disability or need for an accommodation.

Employers should rely on physician documentation to determine if an employee has a disability or need for a reasonable accommodation. Opinions of a disability should not be discussed or placed in writing.
If an employee discloses he/she has a disability, ask if the employee needs a reasonable accommodation in order to perform the job. If the employee needs an accommodation, start the interactive process discussion to determine if there is a reasonable accommodation that will allow the employee to perform the job.

Train your managers so they understand how to handle these situations, what to say and not say, and when to involve senior leaders or HR professionals.

Knowledge You Need December 2019

Handling Accommodation Requests for Mental Health Issues

Under the Americans with Disabilities Act (ADA), employers with 15 or more employees are required to provide reasonable accommodations that will allow employees to perform the essential functions of the job. This applies to both physical and mental disabilities. Reasonable accommodations for physical disabilities may include purchasing a chair with specific lumbar support for an employee with back problems, obtaining a special computer monitor for an employee with vision impairments, or modifying a work station to fit an employee’s wheelchair.

Employers may not be as comfortable dealing with accommodations for mental health impairments. Depression, anxiety and other mental health disabilities are sensitive topics, but are becoming more openly discussed in today’s workforce. Employers need to know how to address reasonable accommodations related to mental health impairments.

The following are steps for properly handling reasonable accommodations for mental health disabilities:

  • Like physical disabilities, employers should not discuss mental health issues with an employee unless the employee indicates a mental health impairment is impacting his/her ability to perform the job. At that point, it is time to start the interactive process discussion with the employee, to determine if there is a reasonable accommodation that will allow the employee to perform the job.
  •  If an employee is having performance or behavioral problems that you suspect are related to a mental health impairment, do not ask the employee if they have a mental health disability. Bring the work performance or behavior concern to the employee’s attention. It is up to the employee to disclose if there is a mental health impairment.
  • If an employee discloses he/she has a mental health issue, ask if the employee needs a reasonable accommodation in order to perform the job. Some common reasonable accommodations related to mental health disabilities include flexible scheduling, allowing additional time to learn new tasks, time off for counseling, frequent breaks, and telework. The Job Accommodation Network (JAN) Toolkit includes an extensive list of accommodations for employees with mental health disorders.
  • Request documentation from the employee’s medical or mental health provider on possible accommodations and how the disability affects the employee’s ability to perform the job. Have a dialogue with the employee to determine the most effective accommodation that does not pose an undue hardship on the employer.
  • Remember that employers may not take adverse employment action (termination, demotion, etc.) against employees with mental health impairments as long as the employee can perform the essential functions of the job.
  • Lastly, be sure to train your managers so they understand how to recognize and handle requests for accommodations.

 

[STATE] Compliance Updates

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September 2019

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