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Deferring Federal Payroll Tax Obligations and COVID-19

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DOL Defer Federal Payroll Taxes due to COVID-19

On August 28, 2020, the U.S. Department of the Treasury issued guidance to address President Trump’s August 8th memo authorizing the deferral of the withholding, deposit, and payment of Social Security payroll tax obligations for affected taxpayers. Employers are not required to defer the payment of Social Security taxes, the deferral is optional, but any deferred taxes must be repaid. The guidance and the memo do not address whether employees can elect to defer (or decline the deferral of) this federal payroll tax. 

Affected taxpayers are defined as employers that are:

  • Required to withhold and pay their employees’ share of federal payroll taxes (OASDI/Social Security taxes and Medicare, collectively FICA); and
  • Affected by the COVID-19 emergency.

The tax deferral is applicable to:

  • Wages paid September 1, 2020 through December 31, 2020; and
  • Only for employees who earn less than $4,000 during any biweekly pay period, before taxes, or the equivalent amount for other pay periods.

The $4,000 threshold determination is made on a pay period-by-pay period basis. For instance, if an employee’s pay for one pay period is less than $4,000, then that amount is considered applicable wages for that pay period, and the deferral applies to the wages paid to that employee for that pay period regardless of their wages from other pay periods.

This deferral is without penalty interest, additional amounts, or addition to the tax; however, payment of these taxes is delayed not forgiven, and the deferred taxes must be paid the following year. Congressional action may change this repayment requirement but for now, employers must withhold and pay the total applicable taxes, that were previously deferred in 2020 along with those that will be due for 2021, on the wages they pay between January 1, 2021 and April 30, 2021.

Failure to make these tax payments in 2021 will result in interest, penalties, and additions to tax will begin to accrue on May 1, 2021 on any unpaid amounts. If necessary, employers may plan to otherwise collect the total applicable taxes from the employee.

Note: The U.S. Department of Defense (DoD) is automatically deferring the withholding, effective September 2020, and civilian employees’ 6.2 percent OASDI tax withholding will be temporarily deferred if their wages, subject to OASDI, are less than $4,000 in any given pay period. The DoD provides a fact sheet and in depth FAQs addressing the program and deferral. For instance, an FAQ addresses that employees who separate or retire in 2020,before the Social Security tax can be collected in 2021, are still responsible for the Social Security tax repayment. 

DOL Opinion Letters on FLSA Compliance

On August 31, 2020, the U.S. Department of Labor announced the New opinion letters addressing the following Fair Labor Standards Act (FLSA) compliance issues:

  • FLSA2020-11: Whether a private “oilfield service company” that provides waste-removal services for oilfield operators may qualify as a “retail or service establishment” eligible to claim the FLSA’s Section 7(i) exemption for certain truck drivers that it employs.
  • FLSA2020-12: Employer compliance with FLSA’s minimum wage requirements when reimbursing delivery drivers for business-related expenses incurred while using their personal vehicles during the course of employment.
  • FLSA2020-13: Whether part-time employees who provide corporate-management training, and are paid a day rate with additional hourly compensation, qualify for the learned professional exemption and the highly compensated employee test under Section 13(a)(1) of the FLSA.
  • FLSA2020-14: Whether employees’ hours must fluctuate above and below 40 hours per week to qualify for the fluctuating workweek method of calculating overtime pay.

An opinion letter is an official, written opinion by the Department’s Wage and Hour Division (WHD) on how a particular law applies in specific circumstances presented by the person that requested the letter.

COVID-19, FFCRA, and Reopening Schools

On August 27, 2020 the U.S. Department of Labor’s Wage and Hour Division (WHD) published new frequently asked questions for workers and employers about qualifying for paid leave under the Families First Coronavirus Response Act (FFCRA) and the reopening of schools. These FAQs:

  • Explain eligibility for paid leave and the varied formats and schedules schools have announced as they plan to reopen, including blending in-person with distance learning.
  • Explain the benefits and protections available under both the paid sick leave and the expanded family and medical leave provisions of the FFCRA.
  • Address whether employees qualify for paid leave when:
  • A child attends a school operating on an alternate day basis;
  • A parent chooses remote learning when in-person instruction is available; and
  • A school begins the year with remote learning but may shift to in-person instruction if conditions change.

The FFCRA allows certain employees to take up to two weeks of paid sick leave and take up to 12 weeks of expanded family and medical leave, ten of which are paid, for specified reasons related to COVID-19. An eligible employee can take both types of paid leave because of a need to care for the employee’s child whose school or place of care is closed, or whose childcare provider is unavailable, due to COVID-19 related reasons. 

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Employment Law Updates: September 2020

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Federal Law Updates: September 2020

Five Federal along with seven State Law Updates have been issued.  Our HR Advisors are versed and ready to answer your toughest HR questions to help your company through working remotely, coming back to work and all year long.

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September 2020 Law Alert Map

Labor Law Updates for September 2020

1

CDC Changes its COVID-19 Testing Guidance

The CDC released updated versions of previous guidance.

  • Overview of Testing for SARS-CoV-2 (COVID-19) – Summary of considerations and current CDC recommendations regarding SARS-CoV-2 testing. The update in this guidance clarified that asymptomatic persons need to be tested for COVID-19, including close contacts of those with COVID-19, because of asymptomatic and pre-symptomatic transmission. Previously, the CDC stated that people without COVID-19 symptoms do not necessarily need to be tested.
  • Guidance for Reopening Buildings After Prolonged Shutdown or Reduced Operation – The update in this guidance addressed mold awareness, monitoring, and remediation during and after prolonged building shutdowns and updated Legionella guidance for people with weakened immune systems and the use of respiratory protection when flushing water systems.

2

Form I-9 Compliance Flexibility Extended Again

Annother extension to the flexibility rules for Form I-9 compliance.

On September 14, 2020, the U.S. Immigration and Customs Enforcement (ICE) announced an extension of the flexibilities in rules related to Form I-9 compliance that was granted earlier this year. Due to the continued COVID-19-related precautions, the Department of Homeland Security (DHS) will extend this policy until November 19, 2020.

On March 19, 2020, due to precautions implemented by employers and employees associated with COVID-19, DHS announced that it would defer the physical presence requirements associated with the Form I-9, Employment Eligibility Verification. This policy only applies to employers and workplaces that are operating remotely. If there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9.

3

DOL Revisions to FFCRA Paid Sick Leave and Expanded Family and Medical Leave Regulations

The U.S. Department of Labor’s Wage and Hour Division (WHD) posted revisions to regulations that implemented the paid sick leave and expanded family and medical leave provisions of the Families First Coronavirus Response Act (FFCRA).

On September 11, 2020, the U.S. Department of Labor’s Wage and Hour Division (WHD) posted revisions to regulations that implemented the paid sick leave and expanded family and medical leave provisions of the Families First Coronavirus Response Act (FFCRA). The revisions made by the new rule clarify workers’ rights and employers’ responsibilities under the FFCRA’s paid leave provisions, in light of the U.S. District Court for the Southern District of New York’s August 3, 2020 decision that found portions of the regulations invalid, and are effective September 16, 2020 when published in the Federal Register.

The revisions do the following: 

  • Explain the requirement that employees may take FFCRA leave only if work would otherwise be available to them.
  • Explain the requirement that an employee must have employer approval to take FFCRA leave intermittently.
  • Revise the definition of “health care 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.
  • Clarify that employees must provide required documentation supporting their need for FFCRA leave to their employers as soon as practicable.
  • Correct an inconsistency regarding when employees may be required to provide notice of a need to take expanded family and medical leave to their employers.

The Department issued its initial temporary rule implementing provisions under the FFCRA on April 1, 2020. 

4

EEOC Updated COVID-19, ADA, Rehabilitation Act, and Other EEO Laws Guidance

EEOC updated the following topics in its What You Should Know About COVID 19 and the ADA, the Rehabilitation Act, and Other EEO Laws.

On September 8, 2020, the U.S. Equal Employment Opportunity Commission updated the following topics in its What You Should Know About COVID 19 and the ADA, the Rehabilitation Act, and Other EEO Laws guidance:

  • Disability-Related Inquiries and Medical Exams
    • Employer-administered COVID-19 tests.
    • Employers asking all employees physically entering the workplace if they have been diagnosed with or tested for COVID-19.
    • Employers asking COVID-19 questions specific to one employee and not all.
    • Employers asking employees in the workplace about family members with COVID-19 diagnosis.
    • Employees who refuse to temperature-taking or answering COVID-19 questions.
    • Employers requesting information from employees about whether they are sick or why they were absent from work.
  • Confidentiality of Medical Information
    • Reporting when an employee has COVID-19 and ADA confidentiality requirements.
    • Employee reporting another employee’s COVID-19 symptoms and ADA confidentiality.
    • Teleworking employees with COVID-19, reporting, and keeping ADA information confidential.
  • Reasonable Accommodation
    • Employers inviting employee to currently ask for a future reasonable accommodation.
    • Reasonable accommodation for teleworking employees during COVID-19.
    • Automatic teleworking as a reasonable accommodation after reopening.
    • Returning employee with a disability and a new accommodation request to telework when the prior request to telework was previously denied.
    • Excusable delays during the interactive process and COVID-19.
    • Federal agencies and delayed timelines due to COVID-19.
  • Furloughs and Layoffs
    • Additional EEO consideration in furloughs or layoffs.
  • Age
    • Employer offering flexibilities to other workers cannot treat older comparable workers less favorably based on age.

Disability-Related Inquiries and Medical Exams

A.6.  May an employer administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) when evaluating an employee’s initial or continued presence in the workplace? (4/23/20; updated 9/8/20 to address stakeholder questions about updates to CDC guidance)

The ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.” Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take screening steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore an employer may choose to administer COVID-19 testing to employees before initially permitting them to enter the workplace and/or periodically to determine if their presence in the workplace poses a direct threat to others. The ADA does not interfere with employers following recommendations by the CDC or other public health authorities regarding whether, when, and for whom testing or other screening is appropriate. Testing administered by employers consistent with current CDC guidance will meet the ADA’s “business necessity” standard.

Consistent with the ADA standard, employers should ensure that the tests are considered accurate and reliable. For example, employers may review information from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities. Because the CDC and FDA may revise their recommendations based on new information, it may be helpful to check these agency websites for updates. Employers may wish to consider the incidence of false-positives or false-negatives associated with a particular test. Note that a positive test result reveals that an individual most likely has a current infection and may be able to transmit the virus to others. A negative test result means that the individual did not have detectable COVID-19 at the time of testing.   

A negative test does not mean the employee will not acquire the virus later. Based on guidance from medical and public health authorities, employers should still require–to the greatest extent possible–that employees observe infection control practices (such as social distancing, regular handwashing, and other measures) in the workplace to prevent transmission of COVID-19.

Note: Questions A.6 and A.8 address screening of employees generally. See Question A.9 regarding decisions to screen individual employees.

A.8.  May employers ask all employees physically entering the workplace if they have been diagnosed with or tested for COVID-19? (9/8/20; adapted from 3/27/20 Webinar Question 1)

Yes. Employers may ask all employees who will be physically entering the workplace if they have COVID-19 or symptoms associated with COVID-19, and if they have been tested for COVID-19. Symptoms associated with COVID-19 include, for example, fever, chills, cough, and shortness of breath. The CDC has identified a current list of symptoms.

An employer may exclude those with COVID-19, or symptoms associated with COVID-19, from the workplace because, as EEOC has stated, their presence would pose a direct threat to the health or safety of others. However, for those employees who are teleworking and are not physically interacting with coworkers or others (for example, customers), the employer would generally not be permitted to ask these questions.

A.9.  May a manager ask only one employee—as opposed to asking all employees—questions designed to determine if she has COVID-19, or require that this employee alone have her temperature taken or undergo other screening or testing? (9/8/20; adapted from 3/27/20 Webinar Question 3)

If an employer wishes to ask only a particular employee to answer such questions, or to have her temperature taken or undergo other screening or testing, the ADA requires the employer to have a reasonable belief based on objective evidence that this person might have the disease. So, it is important for the employer to consider why it wishes to take these actions regarding this particular employee, such as a display of COVID-19 symptoms. In addition, the ADA does not interfere with employers following recommendations by the CDC or other public health authorities regarding whether, when, and for whom testing or other screening is appropriate.

A.10.  May an employer ask an employee who is physically coming into the workplace whether they have family members who have COVID-19 or symptoms associated with COVID-19? (9/8/20; adapted from 3/27/20 Webinar Question 4)

No. The Genetic Information Nondiscrimination Act (GINA) prohibits employers from asking employees medical questions about family members. GINA, however, does not prohibit an employer from asking employees whether they have had contact with anyone diagnosed with COVID-19 or who may have symptoms associated with the disease. Moreover, from a public health perspective, only asking an employee about his contact with family members would unnecessarily limit the information obtained about an employee’s potential exposure to COVID-19.

A.11.  What may an employer do under the ADA if an employee refuses to permit the employer to take his temperature or refuses to answer questions about whether he has COVID-19, has symptoms associated with COVID-19, or has been tested for COVID-19? (9/8/20; adapted from 3/27/20 Webinar Question 2)

Under the circumstances existing currently, the ADA allows an employer to bar an employee from physical presence in the workplace if he refuses to have his temperature taken or refuses to answer questions about whether he has COVID-19, has symptoms associated with COVID-19, or has been tested for COVID-19. To gain the cooperation of employees, however, employers may wish to ask the reasons for the employee’s refusal. The employer may be able to provide information or reassurance that they are taking these steps to ensure the safety of everyone in the workplace, and that these steps are consistent with health screening recommendations from CDC. Sometimes, employees are reluctant to provide medical information because they fear an employer may widely spread such personal medical information throughout the workplace. The ADA prohibits such broad disclosures. Alternatively, if an employee requests reasonable accommodation with respect to screening, the usual accommodation process should be followed; this is discussed in Question G.7.

A.12.  During the COVID-19 pandemic, may an employer request information from employees who work on-site, whether regularly or occasionally, who report feeling ill or who call in sick? (9/8/20; adapted from Pandemic Preparedness Question 6)

Due to the COVID-19 pandemic, at this time employers may ask employees who work on-site, whether regularly or occasionally, and report feeling ill or who call in sick, questions about their symptoms as part of workplace screening for COVID-19.

A.13.  May an employer ask an employee why he or she has been absent from work? (9/8/20; adapted from Pandemic Preparedness Question 15)

Yes. Asking why an individual did not report to work is not a disability-related inquiry. An employer is always entitled to know why an employee has not reported for work.

A.14.  When an employee returns from travel during a pandemic, must an employer wait until the employee develops COVID-19 symptoms to ask questions about where the person has traveled? (9/8/20; adapted from Pandemic Preparedness Question 8)

No. Questions about where a person traveled would not be disability-related inquiries. If the CDC or state or local public health officials recommend that people who visit specified locations remain at home for a certain period of time, an employer may ask whether employees are returning from these locations, even if the travel was personal.

Confidentiality of Medical Information

B.5.  Suppose a manager learns that an employee has COVID-19, or has symptoms associated with the disease. The manager knows she must report it but is worried about violating ADA confidentiality. What should she do?  (9/8/20; adapted from 3/27/20 Webinar Question 5)

The ADA requires that an employer keep all medical information about employees confidential, even if that information is not about a disability. Clearly, the information that an employee has symptoms of, or a diagnosis of, COVID-19, is medical information. But the fact that this is medical information does not prevent the manager from reporting to appropriate employer officials so that they can take actions consistent with guidance from the CDC and other public health authorities.

The question is really what information to report: is it the fact that an employee—unnamed—has symptoms of COVID-19 or a diagnosis, or is it the identity of that employee? Who in the organization needs to know the identity of the employee will depend on each workplace and why a specific official needs this information. Employers should make every effort to limit the number of people who get to know the name of the employee.

The ADA does not interfere with a designated representative of the employer interviewing the employee to get a list of people with whom the employee possibly had contact through the workplace, so that the employer can then take action to notify those who may have come into contact with the employee, without revealing the employee’s identity. For example, using a generic descriptor, such as telling employees that “someone at this location” or “someone on the fourth floor” has COVID-19, provides notice and does not violate the ADA’s prohibition of disclosure of confidential medical information. For small employers, coworkers might be able to figure out who the employee is, but employers in that situation are still prohibited from confirming or revealing the employee’s identity. Also, all employer officials who are designated as needing to know the identity of an employee should be specifically instructed that they must maintain the confidentiality of this information. Employers may want to plan in advance what supervisors and managers should do if this situation arises and determine who will be responsible for receiving information and taking next steps.

B.6.  An employee who must report to the workplace knows that a coworker who reports to the same workplace has symptoms associated with COVID-19. Does ADA confidentiality prevent the first employee from disclosing the coworker’s symptoms to a supervisor? (9/8/20; adapted from 3/27/20 Webinar Question 6)

No. ADA confidentiality does not prevent this employee from communicating to his supervisor about a coworker’s symptoms. In other words, it is not an ADA confidentiality violation for this employee to inform his supervisor about a coworker’s symptoms. After learning about this situation, the supervisor should contact appropriate management officials to report this information and discuss next steps.

B.7.  An employer knows that an employee is teleworking because the person has COVID-19 or symptoms associated with the disease, and that he is in self-quarantine. May the employer tell staff that this particular employee is teleworking without saying why? (9/8/20; adapted from 3/27/20 Webinar Question 7)

Yes. If staff need to know how to contact the employee, and that the employee is working even if not present in the workplace, then disclosure that the employee is teleworking without saying why is permissible. Also, if the employee was on leave rather than teleworking because he has COVID-19 or symptoms associated with the disease, or any other medical condition, then an employer cannot disclose the reason for the leave, just the fact that the individual is on leave.

B.8.  Many employees, including managers and supervisors, are now teleworking as a result of COVID-19. How are they supposed to keep medical information of employees confidential while working remotely? (9/8/20; adapted from 3/27/20 Webinar Question 9)

The ADA requirement that medical information be kept confidential includes a requirement that it be stored separately from regular personnel files. If a manager or supervisor receives medical information involving COVID-19, or any other medical information, while teleworking, and is able to follow an employer’s existing confidentiality protocols while working remotely, the supervisor has to do so. But to the extent that is not feasible, the supervisor still must safeguard this information to the greatest extent possible until the supervisor can properly store it. This means that paper notepads, laptops, or other devices should not be left where others can access the protected information.

Similarly, documentation must not be stored electronically where others would have access. A manager may even wish to use initials or another code to further ensure confidentiality of the name of an employee.

Reasonable Accommodation

D.8.  May an employer invite employees now to ask for reasonable accommodations they may need in the future when they are permitted to return to the workplace? (4/17/20; updated 9/8/20 to address stakeholder questions)

Yes. Employers may inform the workforce that employees with disabilities may request accommodations in advance that they believe they may need when the workplace re-opens. This is discussed in greater detail in Question G.6. If advance requests are received, employers may begin the “interactive process” – the discussion between the employer and employee focused on whether the impairment is a disability and the reasons that an accommodation is needed. If an employee chooses not to request accommodation in advance, and instead requests it at a later time, the employer must still consider the request at that time.

D.14.  When an employer requires some or all of its employees to telework because of COVID-19 or government officials require employers to shut down their facilities and have workers telework, is the employer required to provide a teleworking employee with the same reasonable accommodations for disability under the ADA or the Rehabilitation Act that it provides to this individual in the workplace?  (9/8/20; adapted from 3/27/20 Webinar Question 20)

If such a request is made, the employer and employee should discuss what the employee needs and why, and whether the same or a different accommodation could suffice in the home setting. For example, an employee may already have certain things in their home to enable them to do their job so that they do not need to have all of the accommodations that are provided in the workplace.

Also, the undue hardship considerations might be different when evaluating a request for accommodation when teleworking rather than working in the workplace. A reasonable accommodation that is feasible and does not pose an undue hardship in the workplace might pose one when considering circumstances, such as the place where it is needed and the reason for telework. For example, the fact that the period of telework may be of a temporary or unknown duration may render certain accommodations either not feasible or an undue hardship. There may also be constraints on the normal availability of items or on the ability of an employer to conduct a necessary assessment.

As a practical matter, and in light of the circumstances that led to the need for telework, employers and employees should both be creative and flexible about what can be done when an employee needs a reasonable accommodation for telework at home. If possible, providing interim accommodations might be appropriate while an employer discusses a request with the employee or is waiting for additional information.

D.15.  Assume that an employer grants telework to employees for the purpose of slowing or stopping the spread of COVID-19. When an employer reopens the workplace and recalls employees to the worksite, does the employer automatically have to grant telework as a reasonable accommodation to every employee with a disability who requests to continue this arrangement as an ADA/Rehabilitation Act accommodation?  (9/8/20; adapted from 3/27/20 Webinar Question 21)

No. Any time an employee requests a reasonable accommodation, the employer is entitled to understand the disability-related limitation that necessitates an accommodation. If there is no disability-related limitation that requires teleworking, then the employer does not have to provide telework as an accommodation. Or, if there is a disability-related limitation but the employer can effectively address the need with another form of reasonable accommodation at the workplace, then the employer can choose that alternative to telework.

To the extent that an employer is permitting telework to employees because of COVID-19 and is choosing to excuse an employee from performing one or more essential functions, then a request—after the workplace reopens—to continue telework as a reasonable accommodation does not have to be granted if it requires continuing to excuse the employee from performing an essential function. The ADA never requires an employer to eliminate an essential function as an accommodation for an individual with a disability. 

The fact that an employer temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework for the purpose of protecting their safety from COVID-19, or otherwise chose to permit telework, does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship. These are fact-specific determinations. The employer has no obligation under the ADA to refrain from restoring all of an employee’s essential duties at such time as it chooses to restore the prior work arrangement, and then evaluating any requests for continued or new accommodations under the usual ADA rules.

D.16.  Assume that prior to the emergence of the COVID-19 pandemic, an employee with a disability had requested telework as a reasonable accommodation. The employee had shown a disability-related need for this accommodation, but the employer denied it because of concerns that the employee would not be able to perform the essential functions remotely. In the past, the employee therefore continued to come to the workplace. However, after the COVID-19 crisis has subsided and temporary telework ends, the employee renews her request for telework as a reasonable accommodation. Can the employer again refuse the request? (9/8/20; adapted from 3/27/20 Webinar Question 22)

Assuming all the requirements for such a reasonable accommodation are satisfied, the temporary telework experience could be relevant to considering the renewed request. In this situation, for example, the period of providing telework because of the COVID-19 pandemic could serve as a trial period that showed whether or not this employee with a disability could satisfactorily perform all essential functions while working remotely, and the employer should consider any new requests in light of this information. As with all accommodation requests, the employee and the employer should engage in a flexible, cooperative interactive process going forward if this issue does arise.

D.17.  Might the pandemic result in excusable delays during the interactive process? (9/8/20; adapted from 3/27/20 Webinar Question 19)

Yes. The rapid spread of COVID-19 has disrupted normal work routines and may have resulted in unexpected or increased requests for reasonable accommodation. Although employers and employees should address these requests as soon as possible, the extraordinary circumstances of the COVID-19 pandemic may result in delay in discussing requests and in providing accommodation where warranted. Employers and employees are encouraged to use interim solutions to enable employees to keep working as much as possible.

D.18.  Federal agencies are required to have timelines in their written reasonable accommodation procedures governing how quickly they will process requests and provide reasonable accommodations. What happens if circumstances created by the pandemic prevent an agency from meeting this timeline? (9/8/20; adapted from 3/27/20 Webinar Question 19)

Situations created by the current COVID-19 crisis may constitute an “extenuating circumstance”—something beyond a Federal agency’s control—that may justify exceeding the normal timeline that an agency has adopted in its internal reasonable accommodation procedures. 

Furloughs and Layoffs

F.2.  What are additional EEO considerations in planning furloughs or layoffs? (9/8/20; adapted from 3/27/20 Webinar Question 13)

The laws enforced by the EEOC prohibit covered employers from selecting people for furlough or layoff because of that individual’s race, color, religion, national origin, sex, age, disability, protected genetic information, or in retaliation for protected EEO activity.

Age

H.2.  If an employer is choosing to offer flexibilities to other workers, may older comparable workers be treated less favorably based on age? (9/8/20; adapted from 3/27/20 Webinar Question 12)

No. If an employer is allowing other comparable workers to telework, it should make sure it is not treating older workers less favorably based on their age.

5

Deferring Federal Payroll Tax Obligations and COVID-19

The U.S. Deparment of Treasury issued guidance authorizing deferral of withholding, deposit, and payment of Social Security payroll tax obligations for affected payers.

On August 28, 2020, the U.S. Department of the Treasury issued guidance to address President Trump’s August 8 memo authorizing the deferral of the withholding, deposit, and payment of Social Security payroll tax obligations for affected taxpayers. Employers are not required to defer the payment of Social Security taxes (the deferral is optional), but any deferred taxes must be repaid. The guidance and the memo do not address whether employees can elect to defer (or decline the deferral of) this federal payroll tax.

Affected taxpayers are defined as employers that:

  • Are required to withhold and pay their employees’ share of federal payroll taxes (OASDI/Social Security taxes and Medicare, collectively FICA); and
  • Are affected by the COVID-19 emergency.

The tax deferral is applicable to:

  • Wages paid September 1, 2020 through December 31, 2020; and
  • Only for employees who earn less than $4,000 during any biweekly pay period, before taxes, or the equivalent amount for other pay periods.

The $4,000 threshold determination is made on a pay period by pay period basis. For instance, if an employee’s pay for one pay period is less than $4,000, that amount is considered applicable wages for that pay period, and the deferral applies to the wages paid to that employee for that pay period, regardless of their wages from other pay periods.

This deferral is without penalty interest, additional amounts, or addition to the tax; however, payment of these taxes is delayed — not forgiven — and the deferred taxes must be paid the following year. Congressional action may change this repayment requirement, but for now, employers must withhold and pay the total applicable taxes that were previously deferred in 2020 — along with those that will be due for 2021 — on the wages they pay between January 1, 2021 and April 30, 2021.

Failure to make these tax payments in 2021 will result in interest and penalties, and additions to tax will begin to accrue on May 1, 2021 on any unpaid amounts. If necessary, employers may plan to otherwise collect the total applicable taxes from the employee.

Note: The U.S. Department of Defense (DoD) is automatically deferring the withholding, effective September 2020, and civilian employees’ 6.2 percent OASDI tax withholding will be temporarily deferred if their wages, subject to OASDI, are less than $4,000 in any given pay period. The DoD provides a fact sheet and in depth FAQs addressing the program and deferral. For instance, an FAQ addresses that employees who separate or retire in 2020,before the Social Security tax can be collected in 2021, are still responsible for the Social Security tax repayment.

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Employment Law Updates: May 2020

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Federal & State Employment Law Updates: May 2020

Seven States have updated their employment laws so far this month, alongside sixteen Federal Law Updates.  Our HR Advisors are versed and ready to answer your toughest HR questions to help your company through working remotely, coming back to work and all year long.

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Federal Law Alerts May 2020

Labor Law Updates for May 2020

1

OSHA Revised COVID-19 Case Reporting and Updated Response Plan

An emergency declaration regarding suspensions of regulations for permissible drive times for commercial drivers. 

On May 19, 2020, the Occupational Safety and Health Administration (OSHA) revised its enforcement guidance for recording COVID-19 cases. On May 26, 2020, the previous memo on this topic will be rescinded, and this new memorandum goes into and remains in effect until further notice. Under OSHA’s recordkeeping requirements, COVID-19 is a recordable illness, and thus employers are responsible for recording cases of it, if:

  • The case is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention (CDC);
  • The case is work-related; and
  • The case involves one or more of the general recording criteria.

 

In addition, OSHA updated its interim enforcement response plan for COVID-19 with instructions and guidance to Area Offices and compliance safety and health officers (CSHOs) for handling COVID-19-related complaints, referrals, and severe illness reports. On May 26, 2020, the previous memo on this topic will be rescinded, and this new update goes into and remains in effect until further notice. As workplaces reopen, OSHA will continue to ensure safe and healthy conditions pursuant to the following framework:

  • In areas where community spread of COVID-19 has significantly decreased, OSHA will return to its pre-COVID-19 inspection planning policy when prioritizing reported events for inspections, except that:
    • OSHA will continue to prioritize COVID-19 cases;
    • OSHA will utilize non-formal phone/fax investigations or rapid response investigations in circumstances where it has historically performed such inspections (e.g., to address formal complaints) when necessary to assure effective and efficient use of resources to address COVID-19-related events; and
    • In all instances, CSHOs must utilize the appropriate precautions and personal protective equipment (PPE) when performing COVID-19-related inspections.

 

  • In areas where there is sustained elevated community transmission or a resurgence in community transmission of COVID-19, Area Directors will exercise their discretion, including consideration of available resources, to:
    • Continue prioritizing COVID-19 fatalities and imminent danger exposures for inspection. Particular attention for on-site inspections will be given to high-risk workplaces, such as hospitals and other healthcare providers treating patients with COVID-19, as well as workplaces, with high numbers of complaints or known COVID-19 cases. In addition:
      • Where resources do not allow for on-site inspections, the inspections will be initiated remotely with an expectation that an on-site component will be performed if/when resources become available.
      • Where neither an on-site nor remote inspection is possible, OSHA will investigate using a rapid response investigation to identify any hazards, provide abatement assistance, and confirm abatement.
      • OSHA will develop a program to conduct monitoring inspections from a randomized sampling of fatality or imminent danger cases where inspections were not conducted due to resource limitations.
    • Utilize non-formal phone/fax investigation instead of an on-site inspection in industries where doing so can address the relevant hazard(s).
    • Ensure that CSHOs utilize the appropriate precautions and personal protective equipment to protect against potential exposures to COVID-19.

 

Both the guidance and plan are intended to be time-limited to the current COVID-19 public health crisis.

2

Paycheck Protection Program Loan Forgiveness Application

On May 15, 2020, the Small Business Administration (SBA) released the Paycheck Protection Program (PPP) loan forgiveness application, with instructions, to inform borrowers about applying for forgiveness of their PPP loans at the conclusion of the eight-week covered period, which began with the disbursement of their loans. The PPP was created by the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) to provide forgivable loans to eligible small businesses to keep workers on the payroll during the COVID-19 pandemic. 

The form and instructions include:

  • Options for borrowers to calculate payroll costs using an “alternative payroll covered period” that aligns with their regular payroll cycles.
  • Flexibility to include eligible payroll and non-payroll expenses paid or incurred during the eight-week period after receiving their PPP loan.
  • Instructions on how to complete the calculations required by the CARES Act to confirm eligibility for loan forgiveness.
  • Statutory exemptions from loan forgiveness reduction based on rehiring by June 30.
  • A new exemption from the loan forgiveness reduction for borrowers who made a good-faith, written offer to rehire workers, which was declined.

View the application and instructions.

3

Workplace Decision Tree and COVID-19

The Centers for Disease Control and Prevention (CDC) released a workplace decision tree to assist employers in making reopening decisions during the COVID-19 pandemic. The tool walks employers through the following steps:

  • Whether they should consider reopening;
  • If they plan to reopen, whether recommended health and safety actions are in place; and 
  • If in place, how they can ensure ongoing monitoring for maintaining safety.

 

If employers cannot answer “yes” to the questions posed in the tool, the CDC recommends that they reassess and meet the necessary safeguards prior to reopening. The CDC also reminds employers to check with their state and local health officials to determine the most appropriate actions while adjusting to meet the needs and circumstances of their local community.

See the decision tree.

4

Overtime and Fluctuating Workweek

On May 20, 2020, the U.S. Department of Labor (DOL) announced a final rule allowing employers to pay bonuses, premium payments, or other additional pay, such as commissions and hazard pay, to employees compensated using the fluctuating workweek method of compensation. For overtime purposes, these supplemental payments must be included in the calculation of the regular rate unless they are excludable under the federal Fair Labor Standards Act (§§ 7(e)(1) – (8)). Currently, this fluctuating workweek method may not be used by employers who compensate their employees with bonuses or other incentive-based pay. 

Background

The Fair Labor Standards Act (FLSA) requires that employers pay their nonexempt employees overtime of at least one and one-half times their regular rate for all hours worked over 40 in a workweek. The regular rate is computed for each workweek and is all remuneration for employment, with some exclusions, divided by the number of hours worked. The regular rate is determined by dividing the total pay in any workweek by the total number of hours actually worked.

Fluctuating Workweek Method

The fluctuating workweek method allows employers to calculate overtime pay for nonexempt employees who are paid a fixed salary for hours that vary each week. Specifically, an employer may use this method to compute overtime compensation when:

  • The employee’s work hours fluctuate from week to week;
  • The employee receives a fixed salary that does not vary with the number of hours they work in the workweek, whether few or many;
  • The amount of the employee’s fixed salary is enough to pay them at least the applicable minimum wage for every hour they worked in workweeks when they worked the most hours;
  • The employee and the employer have a clear and mutual understanding that the employee’s fixed salary is compensation (apart from overtime premiums and any bonuses, premium payments, commissions, hazard pay, or other additional pay of any kind not excludable from the regular rate under FLSA §§ 7(e)(l) – (8) for the total hours worked each workweek regardless of the number of hours; and
  • The employee receives overtime pay, in addition to their fixed salary and any bonuses, premium payments, commissions, hazard pay, and additional pay of any kind, for all overtime hours worked at no less than one-half the employee’s regular rate of pay for that workweek.

 

Since the salary is fixed, an employee’s regular rate will vary from week to week and is determined by dividing the amount of the salary and any non-excludable additional pay received each workweek by the number of hours worked in the workweek.

Payment for overtime hours, at no less than one-half of this rate, is compliant because these hours have already been compensated at the straight time rate (by payment of the fixed salary and non-excludable additional pay). Payment of any bonuses, premium payments, commissions, hazard pay, and additional pay of any kind is compatible with the fluctuating workweek method of overtime payment, and such payments must be included in the calculation of the regular rate unless excludable under § 7(e)(1) through (8).

Scenario and Example

The DOL provides the following scenario and example to demonstrate overtime and a fluctuating workweek:

Scenario: An employee whose hours of work do not customarily follow a regular schedule but vary from week to week, whose work hours never exceed 50 hours in a workweek, and whose salary of $600 a week is paid with the understanding that it constitutes the employee’s compensation (apart from overtime premiums and any bonuses, premium payments, commissions, hazard pay, or other additional pay of any kind not excludable from the regular rate under §§ 7(e)(1) – (8)) for all hours worked in the workweek.

Example: If during the course of four weeks this employee receives no additional compensation and works 37.5, 44, 50, and 48 hours, the regular rate of pay in each of these weeks is $16, $13.64, $12, and $12.50, respectively. Since the employee has already received straight time compensation for all hours worked in these weeks, only additional half-time pay is due for overtime hours. For the first week the employee is owed $600 (fixed salary of $600, with no overtime hours); for the second week $627.28 (fixed salary of $600, and 4 hours of overtime pay at one-half times the regular rate of $13.64 for a total overtime payment of $27.28); for the third week $660 (fixed salary of $600, and 10 hours of overtime pay at one-half times the regular rate of $12 for a total overtime payment of $60); for the fourth week $650 (fixed salary of $600, and 8 overtime hours at one-half times the regular rate of $12.50 for a total overtime payment of $50).

The DOL included a disclaimer that this final rule was submitted to the Office of the Federal Register (OFR) for publication, and is currently pending placement upon public inspection at the OFR and publication in the Federal Register. The current version of the final rule may vary from the published version if minor technical or formatting changes are made during the OFR review process. Importantly, only the version published in the Federal Register is the official final rule.

The final rule is effective 60 days after final publication.

Read the announcement and final rule.

5

DOL and Commissioned Sales Overtime Exemption

On May 18, 2020, the U.S. Department of Labor’s Wage and Hour Division (WHD) modified its former interpretation of the Fair Labor Standards Act’s overtime exemption for primarily commission-based employees of retail or service employers (§ 7(i) exemption). To meet the commissioned sales overtime exemption, a worker:

  • Must be employed in a “retail or service” establishment;
  • Must earn at least 1.5 times the minimum wage; and
  • More than half their compensation for a representative period (not less than one month) must represent commissions.

 

In 1961 and 1970, the Department of Labor (DOL) released two interpretive rules with long lists of businesses that were not retail (“no retail concepts”) or might be retail (“may be recognized as retail”). These lists, although not binding on the courts, created flexibility in commissioned employees’ overtime entitlement by more broadly interpreting whether the employee was actually working for a “retail or service” employer (and thus entitled to overtime compensation). The DOL’s recent modification eliminated the aforementioned lists and instead will apply a single standard when determining whether an establishment is “retail or service”:

“Retail or service establishments sell goods or services to the general public, serve the everyday needs of the community, are at the very end of the stream of distribution, dispose their products and skills in small quantities, and do not take part in the manufacturing process.” (29 C.F.R. § 779.318(a))

As a result, more commission-based workers may be exempt from the FLSA overtime requirements because this recent interpretation treats their employer as a “retail or service” establishment.

The WHD issued this rule without notice or comment, and it took immediate effect.

Read the final rule and fact sheet.

6

Department of Labor’s COVID-19 Updates

On May 15, 2020, the U.S. Department of Labor (DOL) announced all of the following COVID-19 updates and resources:

7

Form I-9 Compliance Flexibility Extended

On May 14, 2020, the U.S. Immigration and Customs Enforcement (ICE) announced an extension of rules allowing employers flexibility in Form I-9 compliance. Under the rules, employers may forego the requirement that an employee’s identity and employment authorization documents (Form I-9 Section 2 documents) be reviewed in the employee’s physical presence. This in-person flexibility was permitted because many employers and employees were taking physical proximity precautions due to COVID-19. Instead, employers must take the following actions to verify an employee’s identity and employment authorization via Section 2 documents:

  • Inspect the Section 2 documents remotely (over video link, fax, or email); and
  • Obtain, inspect, and retain copies of these documents within three business days.

 

This flexibility in identity and authorization documents only applies to employers and workplaces that are operating remotely. The May 14 announcement extends the flexibility for an additional 30 days (it was set to expire on May 19) in response to the need for continued COVID-19 precautions.

Additionally, effective March 19, 2020, employers who were served notices of inspection from ICE during the month of March 2020, and did not respond, were granted an automatic extension for 60 days from the effective date. ICE will grant an additional 30-day extension for these employers as well, if needed.

Read the announcement and original guidance.

8

Payroll Protection Program and Employee Retention Credits

On May 7, 2020, the Internal Revenue Service (IRS) updated its frequently asked questions (FAQs) about the Payroll Protection Program (PPP) and the Employee Retention Credit under the Cares Act. The Employee Retention Credit (ERC) is a tax credit equal to 50 percent of the qualified wages that eligible employers paid to employees (up to $5,000 per employee) after March 12, 2020 and before January 1, 2021. Employers that receive a PPP loan are not qualified for the ERC.

The IRS clarified in its updated FAQ that an employer that repays its PPP loan by May 14, 2020 will be treated as though they did not receive it and may still receive the ERC (if otherwise eligible). This updated FAQ is important because the repayment date was originally May 7, 2020.

See the FAQs and read about the Employee Retention Credit.

9

EEOC, COVID-19, ADA, the Rehabilitation Act, and Other EEO Laws

On May 5, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) updated the following technical assistance questions and answers addressing return to work and the Americans with Disabilities Act (ADA), the Rehabilitation Act, and other equal employment opportunity (EEO) laws:

(G.3) What does an employee need to do in order to request reasonable accommodation from their employer because they have one of the medical conditions that CDC says may put them at higher risk for severe illness from COVID-19? (updated 5/5/20)

An employee – or a third party, such as an employee’s doctor – must let the employer know that they need a change for a reason related to a medical condition (here, the underlying condition). Individuals may request accommodation in conversation or in writing. While the employee (or third party) does not need to use the term “reasonable accommodation” or reference the ADA, they may do so. 

The employee or their representative should communicate that they have a medical condition that necessitates a change to meet a medical need. After receiving a request, the employer may ask questions or seek medical documentation to help decide if the individual has a disability and if there is a reasonable accommodation, barring undue hardship, that can be provided. 

(G.4) The CDC identifies a number of medical conditions that might place individuals at “higher risk for severe illness” if they get COVID-19.  An employer knows that an employee has one of these conditions and is concerned that his health will be jeopardized upon returning to the workplace, but the employee has not requested accommodation.  How does the ADA apply to this situation? (5/7/20)

First, if the employee does not request a reasonable accommodation, the ADA does not mandate that the employer act.

If the employer is concerned about the employee’s health being jeopardized upon returning to the workplace, the ADA does not allow the employer to exclude the employee – or take any other adverse action – solely because the employee has a disability that the CDC identifies as potentially placing them at “higher risk for severe illness” if they get COVID-19. Under the ADA, such action is not allowed unless the employee’s disability poses a “direct threat” to their health that cannot be eliminated or reduced by reasonable accommodation.

The ADA direct threat requirement is a high standard. As an affirmative defense, direct threat requires an employer to show that the individual has a disability that poses a “significant risk of substantial harm” to their own health under 29 CFR § 1630.2(r). A direct threat assessment cannot be based solely on the condition being on the CDC’s list; the determination must be an individualized assessment based on a reasonable medical judgment about this employee’s disability – not the disability in general – using the most current medical knowledge and/or on the best available objective evidence. The ADA regulation requires an employer to consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm. Analysis of these factors will likely include considerations based on the severity of the pandemic in a particular area and the employee’s own health (for example, is the employee’s disability well-controlled), and their particular job duties. A determination of direct threat also would include the likelihood that an individual will be exposed to the virus at the worksite. Measures that an employer may be taking in general to protect all workers, such as mandatory social distancing, also would be relevant.

Even if an employer determines that an employee’s disability poses a direct threat to his own health, the employer still cannot exclude the employee from the workplace – or take any other adverse action – unless there is no way to provide a reasonable accommodation (absent undue hardship). The ADA regulations require an employer to consider whether there are reasonable accommodations that would eliminate or reduce the risk so that it would be safe for the employee to return to the workplace while still permitting performance of essential functions. This can involve an interactive process with the employee. If there are not accommodations that permit this, then an employer must consider accommodations such as telework, leave, or reassignment (perhaps to a different job in a place where it may be safer for the employee to work or that permits telework). An employer may only bar an employee from the workplace if, after going through all these steps, the facts support the conclusion that the employee poses a significant risk of substantial harm to themselves that cannot be reduced or eliminated by reasonable accommodation.

(G.5) What are examples of accommodation that, absent undue hardship, may eliminate (or reduce to an acceptable level) a direct threat to self? (updated 5/5/20)

Accommodations may include additional or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to employees returning to its workplace. Accommodations also may include additional or enhanced protective measures, for example, erecting a barrier that provides separation between an employee with a disability and coworkers/the public or increasing the space between an employee with a disability and others. Another possible reasonable accommodation may be elimination or substitution of particular “marginal” functions (less critical or incidental job duties as distinguished from the “essential” functions of a particular position). In addition, accommodations may include temporary modification of work schedules (if that decreases contact with coworkers and/or the public when on duty or commuting) or moving the location of where one performs work (for example, moving a person to the end of a production line rather than in the middle of it if that provides more social distancing).  

These are only a few ideas. Identifying an effective accommodation depends, among other things, on an employee’s job duties and the design of the workspace. An employer and employee should discuss possible ideas; the Job Accommodation Network (www.askjan.org) also may be able to assist in helping identify possible accommodations. As with all discussions of reasonable accommodation during this pandemic, employers and employees are encouraged to be creative and flexible.

See the updated questions and answers and all EEOC materials related to COVID-19.

Download the Other 7 Federal Law Updates

Download All Updates

Individual State Labor Laws

State Specific Labor Law Updates:

Compliance can weigh down even the most experienced professionals. Our HR Advisors, automatically updating Handbook, Compliance Database, HR Tools and Employee Training are ready to help navigate HR all year long. Everything included with your AllMyHR™ Solutions. 

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7 Critical Employer Considerations Before Reopening

Posted on by try HRIS

We know as employers, you are doing your best to protect your employees as well as your hard earned business. 

But as businesses have begun to cautiously reopen, the employee lawsuits have already begun. 

Our expert HR Advisors and ERISA Attorneys have complied these 7 Critical considerations to aid employers during this unprecedented time. 

7 Critical Considerations for Employers Reopening Business

1

Your Safety Standards

Ensuring your business utilizes mandatory health screenings, space considerations, mask requirements and disinfecting protocols will be paramount to safely reopening. But thorough documentation of these considerations will be paramount to protecting your company.

covid 19 compliance

Employers need to ensure they have the ability to keep people a minimum of eight feet apart. Physical barriers between employees and customers, such as Plexiglas, should be installed. Consider replacing air filters with more effective versions, such as HEPA filters. Filters should be changed according to the manufacturer’s recommendation. Businesses with elevators should limit use to two people at time.

Disinfection procedures and protocols should be in place in all work environments and places where people will gather. Hand sanitizers should be readily available. Signage  reminding people to wash their hands with soap and warm water for twenty seconds must be displayed. Shared equipment such as telephones, computer terminals, copy machines, door handles, and bathrooms must have special considerations to maintain cleanliness.

Health screening procedures, specifically adhering to OSHA and HIPAA requirements (to consult with HR Support, see below), for employees and customers will also be important to put in place. Anyone with symptoms such as cough, temperature elevations (above 99.8 F), or people feeling poorly, should not be allowed into settings with other people. If a person tests positive for COVID-19, they should not return to work, and should maintain a self-quarantine, until they develop antibodies and are at least 21 days post symptoms. People with symptoms regardless of their testing status should not return to the workplace or to social interactions. 

2

Reliable HR Support

If you are like many small businesses across America without an HR Department, make sure your business has a reliable source for HR support or, as a last resort, employment law. 

Can employers ask employees if they have symptoms of COVID-19? 

Can employers require employees who are “higher-risk” to stay home or direct them to leave the workplace once they have reported to work?

What should employers do when employees say they are experiencing otherwise undiagnosed symptoms of COVID-19 or have been exposed to someone who has COVID-19?

The answers to these questions, and the others you will run into, may surprise you! (The second answer is actually mostly no!)

To ensure your business is protected, new compliant policies must be put into place. It has become imperative to stay up to date on the latest compliance requirements and regulations, as they’ve had significant and constant updates. 

3

The Need for Updated or Temporary Policies

As employment law changes to adapt to the current circumstances, employers must make sure the policies in place guide employees and protect from possible retaliation. 

While adapting to the circumstances, many employers have discovered teleworking is a more viable option than once considered. If this is a viable option for your employees, teleworking and remote work should still be encouraged until there is little or no risk in your area.

Staggered work schedules could be utilized to ensure that proper spacing of employees is obtainable.

Liberal leave and sick time policies should be in place to ensure that people with symptoms do not come to work. 

All of these considerations will require proper policy to avoid possible retaliation for favoritism, or other assumptions. If creating these policies seems daunting, consider having our Advisors create your custom policies for you.

(And don’t forget to update your handbook with these changes… or let ours update it for you.)

4

Updated Contingency Plans

As the world cautiously reopens, employees are relying on their employers to have a plan in place in case of another outbreak. 

Now that we know about the threat of COVID-19, as well as other potential pandemics, there is no excuse not to be prepared for future outbreaks. Businesses must thoroughly evaluate their crisis management plans and ensure the lessons already learned have been re-evaluated and added into these. This will ensure any future viral outbreaks will be effectively managed – and you can be sure employees will now expect seamless outbreak management.

5

Effective Reopening Communication

Clear and proper communication can greatly reduce employee stress and increase trust  when returning to work. 

Employers reopening communications with employees, should allow for questions (which is when HR Support can really help follow regulations and requirements) and should discuss clear expectations for returning to work. Additionally, including your new policies to make sure everyone understands safety expectations and will help your employees trust your decision as their employer. 

Trust and transparency are powerful tools to make people feel more comfortable returning to work.

 

6

Possible Travel Restrictions

Positions that require travel, especially to meet with clients and vendors, must be evaluated to address today’s concerns.

Employers will have to reassess which employees can travel – if any – and how traveling employees will get to and from their destinations. Only travel deemed necessary to business operations should be approved, and employees who must travel by air or train should be required to report any onset of symptoms while away from the office. This criteria should also include employees who commute using mass transit. If possible,  employees who do use mass transit should be encouraged, and possibly incentivized, to use transportation that minimize contact with others.

7

Continued Covid-19 Education

Just because some restrictions have been lifted, does not mean we are in the clear yet. Staying up to date on the impact of Covid-19, regulations and changing compliance requirements will be imperative to avoiding employee litigation conflicts.  

Immersing yourself, or your operations manager, in reliable information can help protect your company. Our company offers continuous webinars hosted by professionals in their field, from employment attorneys to Human Resource Officers. Get free access to all of our webinars here. 

In Conclusion

We know during this time businesses aren’t sure where to turn or who to trust. We get it. That’s why we offer two full weeks to check out all of our services, talk to our HR Advisors directly, take our training and decide if we’re right for you. If we’re a fit for your company, there’s no contract, no set up fees and no surprises. A simple $99 a month for everything. 

While the world may never look exactly like it used to, we can continue forward and ensure that if we take necessary precautions, we can return strong with a fresh start. 

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New I-9 Policy Due to Covid 19

Posted on by try HRIS

Federal Law Alert: New I-9 Policy Due to COVID-19

If you’re wondering how Law Updates such as this will effect your business and have specific questions, our HR Experts are ready to help guide you, your company and your staff. 

The Department of Homeland Security (DHS) issued a temporary policy to allow employers to accept expired List B documents when completing the Form I-9 to begin May 1. This policy is intended to accommodate for the fact that many people are unable to renew their driver’s licenses or state ID cards at this time due to stay-at-home orders. Some states have extended the expiration of driver’s licenses and state identification cards, which are common List B documents, yet others have not. The temporary policy addresses both situations.

covid 19 compliance

Temporary Extension for Expired List B Documents That Have Not Been Extended

List B documents that expire on or after March 1, 2020, and have not been extended by the state may be treated the same as if the employee presented a valid receipt for an acceptable document for Form I-9 purposes.

If an employee presents their driver’s license that expired on or after March 1 and it was not extended by the state, employers should:

  • Record the documentation information in Section 2 under List B, as applicable; and
  • Enter the word “COVID-19” in the Additional Information field.

When the DHS ends this temporary policy, employers must require the employee to provide a valid unexpired document within 90 days. (The replacement for the expired document is preferred, but employees may choose to present a different document or documents to satisfy the I-9 requirements.)

At that time, in the Section 2 Additional Information field, employers must:

  • Record the number and other required document information from the actual document presented; and
  • Initial and date the change.

Procedure for List B Documents That Have Been Extended

If the employee’s List B identity document expired on or after March 1, 2020, and the issuing authority has extended the document expiration date because of COVID-19, the document is acceptable as a List B document for Form I-9 (not as a receipt) during the extension timeframe specified by the issuing authority. In that case, the employer must:

  • Enter the document’s expiration date in Section 2; and
  • Enter “COVID-19 EXT” in the Additional Information field.

Employers may also attach a copy of a webpage or other notice indicating that the issuing authority has extended the documents. Employers can confirm that their state has auto-extended the expiration date of state IDs and driver’s licenses by checking the state Motor Vehicle Administration or Department of Motor Vehicles website.

The employee is not required to present a valid unexpired List B document later.

E-Verify Changes

Employers participating in E-Verify should use the employee’s expired List B document number from Section 2 of the Form I-9 to create an E-Verify case as usual within three days of the date of hire. Even if a state has automatically extended the employee’s driver’s license because of COVID-19, employers should enter the expiration date as printed on the employee’s document when creating the E-Verify case.

Reminders & Additional Information

Employers are required to complete an employee’s Form I-9 within three days of their first day of work. The DHS has temporarily suspended the physical presence requirement for fully remote workplaces.

Helpful questions and answers on temporary I-9 and E-Verify policies have been created by the U.S. Citizenship and Immigration Services and are available here.

Complying with Covid-19, and all compliance, is easiest when you have professionals to rely on and the most up to date information at your fingertips. Our services were built for small businesses. 

Previous Labor Laws & Information

Overview of Unemployment Benefits Changes Under the CARES Act

Posted on by try HRIS

Overview of Unemployment Benefits Changes Under the CARES Act

The Coronavirus Aid, Relief, and Economic Security (CARES) Act became law on March 27, 2020, and is a $2.2 trillion economic stimulus package designed to support individuals and businesses affected by the COVID-19 pandemic. This Act is important because it provides federal dollars at this time of crisis to state unemployment insurance benefit (UI) programs and to individuals who would not normally have this assistance. The Act is separate from the Families First Coronavirus Response Act (FFCRA), which was enacted mid-March.

The CARES Act makes significant changes to UI benefits, which are administered by the states. The CARES Act allows states to opt in to an agreement with the federal government to receive enhanced UI benefits and Pandemic Unemployment Assistance funded by the federal government.

Since individual determinations about worker eligibility for UI benefits are made by the states, we recommend not speculating about or attempting to calculate how much your workers will receive.

Key Provisions of the CARES Act are as follows:

1. Additional Cash Benefits for Claimants and Longer Benefit Period

The CARES Act added an additional $600 to the weekly UI benefits amount that an individual would normally receive, for up to four months, through July 31, 2020. (Some may earn more than they would working.) The $600 is in addition to the state benefit amount and applies to all unemployed workers. The Act also increases the length of time someone can be on unemployment benefits to a maximum of 39 weeks. (For many states, this will be an increase of 13 weeks of benefits.)

While these unemployment benefits are generous, employers should still consider their options and incentives under the CARES Act to keep workers employed before making decisions about reduced hours, furloughs, or layoffs.

2. More Workers Will be Eligible for Pandemic Unemployment Assistance (PUA)

The PUA program provides supplemental unemployment insurance benefits to individuals who would not normally qualify for traditional UI benefits, such as:

  • Self-employed workers;
  • Independent contractors;
  • Gig workers;
  • Low wage workers who can no longer work because of the pandemic;
  • Those without sufficient work history;
  • Individuals who have exhausted their regular unemployment benefits and extended federal benefits. This means that traditional employees may apply for PUA after all of their other unemployment benefit options have expired.

 

The PUA program runs from January 27, 2020, to December 31, 2020. This means unemployment assistance is available to covered individuals for weeks of unemployment, partial unemployment, or inability to work caused by COVID-19 beginning on or after January 27, 2020, and ending on or before December 31, 2020.

3. Qualifications

A “covered individual” for PUA includes anyone who is not eligible for regular unemployment compensation or expanded benefits and who provides “self-certification” that they are able and available to work but unemployed or partially unemployed or unable to work because of any of the following:

  • They were diagnosed with COVID-19 or are experiencing symptoms of COVID-19 and are seeking a medical diagnosis;
  • A household member was diagnosed with COVID-19;
  • They are providing care for a family member or household member diagnosed with COVID-19;
  • They are the primary caregiver for a child, or another person in their household, who is unable to attend school or another facility that is closed as a direct result of COVID-19 and that school or such facility care is required for the individual to be able to work;
  • They are unable to reach their workplace because of a quarantine imposed as a direct result of COVID-19;
  • They are unable to reach their workplace because a health care provider has advised them to self-quarantine because of COVID-19 related concerns;
  • They were scheduled to commence employment and do not have a job or is unable to reach the job as a direct result of COVID-19;
  • They have become the breadwinner or major support for a household because the head of household died as a direct result of COVID-19;
  • They had to quit their job as a direct result of COVID-19;
  • Their workplace is closed as a direct result of COVID-19; or
  • They meet any additional criteria established by the Secretary of the Department of Labor for unemployment assistance.

 

Individuals who are able to telework with pay or who are receiving paid sick leave or other paid leave benefits, regardless of whether they meet any of the qualifications above, will not qualify for these benefits.

4. One-Week Waiting Period for UI Benefits Removed.

The CARES Act provides federal funding for states to remove the waiting week to receive unemployment compensation. However, many states voluntarily removed their one-week waiting period prior to the Act’s passage. It is likely that remaining states will also remove their waiting period.

Employees who experience reduced hours, furloughs, or layoffs should be encouraged to file for UI benefits as soon as possible by following their state’s website guidance. We are directing clients to contact their state employment department for questions about these expanded unemployment insurance benefits because the law is in flux and these departments are the most qualified to answer questions about their (and the federal) UI programs.

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HR Q&A FAQ about Employee Training

When do expanded UI benefits and Pandemic Unemployment Assistance take effect?

It depends on the relevant state unemployment agency. Expanded UI benefits for unemployed workers will depend on when your state opts in to the federal program. States are now awaiting implementation guidance from the DOL to implement the various provisions and building the infrastructure to take applications under the new rules.

The PUA program runs from January 27, 2020, to December 31, 2020. This means unemployment assistance is available to covered individuals for weeks of unemployment, partial unemployment, or inability to work caused by COVID-19 beginning on or after January 27, 2020, and ending on or before December 31, 2020. Check with your state unemployment agency for more details.

How do I know my state’s current Maximum Weekly Benefit Amount (WBA) and calculation method?

State maximum WBAs range from $235 to over $1000. Please refer to the chart here for information about each state’s regular unemployment minimum and maximum WBA and calculation information.  Please direct questions about WBA calculation to your state’s unemployment department.  We do not recommend providing employees with estimated benefits and recommend directing them to the state’s employment department website for information about their benefits.

What is this “work sharing” I keep hearing about?

Work share (or “short-time compensation”) is where the company signs into an agreement with the state employment department to keep people working. There are strings attached, but ultimately employees continue working and can often get higher weekly UI benefits than they would with a partial claim. The federal government will be funding existing work share programs and adding incentives for states to provide them if they don’t already. Start here to see if your state currently has a work share program. 

How will Pandemic Unemployment Assistance work? Am I (or one of my independent contractors or other workers) eligible?

There are a lot of unanswered questions about how PUA will work. We recommend referring those who may be newly eligible for PUA benefits to the state’s unemployment department for information. We anticipate that states will issue additional information and application guidelines for independent contractors and others not typically eligible for unemployment benefits.

Can workers get a higher benefit than they previously made in wages? Won’t that be a disincentive to look for work?

Yes, they can; however, this primarily affects lower wage earners. The $600 payment alone reflects a 40-hour workweek at $15/hour. The federal pandemic unemployment compensation ($600) combined with the underlying state unemployment benefit, would replace 100 percent of wages for the average US worker. Normally UI benefits do not replace all lost wages (and nationally replace about 40 percent of wages). UI benefits are normally intended only to assist workers while they are actively seeking new employment. However, nothing about this virus or situation is normal; COVID-19 is a public health emergency. Providing an average wage of $15 per hour was not meant to disincentivize work but rather protect all workers. This especially applies to workers who would normally earn very low unemployment benefits—by providing an unemployment wage replacement at $15 per hour, they are not forced to work in violation of public health orders (at a higher risk of infection) and thus are not disparately affected by this pandemic.

What about people whose hours have been reduced? Can they get unemployment insurance payments?

Yes, individuals can receive benefits for partial unemployment. In a few states, an individual is considered totally unemployed in a week even when certain small amounts of wages are earned. In most states, an individual is considered to be partially unemployed if they are working less than full-time and their earnings are less than the weekly benefit amount that they would be eligible for if they were unemployed. Some states may disregard a portion of a person’s earnings in this calculation as well, meaning some of their earnings would not count when calculating their weekly benefit amount they are eligible for (see Table 3-8 here for specific state information).

Will the $600 Pandemic Unemployment Assistance (PUA) be prorated for those who are partially unemployed (working reduced hours)?

No. Guidance recently released by the Department of Labor clarified that if an individual is eligible to receive at least one dollar ($1) of underlying benefits for the claimed week, the claimant will receive the full $600 FPUC.  Please direct questions about partial benefits calculation formulas to your state unemployment department.

Help! I’m a non-profit reimbursing employer! What do I do?

The CARES Act provides for some potential flexibility for reimbursement payments. Please contact your state unemployment office for more information.

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Employment Law Updates: April 2020

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Federal & State Employment Law Updates: April 2020

Fourteen States have updated their employment laws so far this month, alongside nine Federal Law Updates.  Our HR Advisors are versed and ready to answer your toughest HR questions to help your company through working remotely, coming back to work and all year long.

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Employment Law Updates April 2020

Labor Law Updates for April 2020

1

COVID-19, Commercial Drivers, and Hours of Service Temporary Suspension

An emergency declaration regarding suspensions of regulations for permissible drive times for commercial drivers. 

On March 13, 2020, the federal Department of Transportation (DOT) released an emergency declaration (No. 2020-002), with an extension on April 8, 2020, in response to national emergency conditions caused by COVID-19 that create an immediate need for transportation of essential supplies, equipment, and persons. It also provides necessary relief from the Federal Motor Carrier Safety Regulations for motor carriers and drivers engaged in the transport of these essential supplies, equipment, and persons.

Under the declaration, the DOT’s hours of service requirements that regulate permissible drive time are temporarily suspended for commercial motor vehicle operations that provide direct assistance in support of emergency relief efforts related to the COVID-19 outbreaks, including transportation to meet immediate needs for:

  1. Medical supplies and equipment related to the testing, diagnosis, and treatment of COVID-19;
  2. Supplies and equipment necessary for community safety, sanitation, and prevention of community transmission of COVID-19 such as masks, gloves, hand sanitizer, soap, and disinfectants;
  3. Food, paper products, and other groceries for emergency restocking of distribution centers or stores;
  4. Immediate precursor raw materials — such as paper, plastic, or alcohol — that are required and to be used for the manufacture of items in bullets 1, 2, 3, or 5;
  5. Liquefied gases to be used in refrigeration or cooling systems;
  6. Equipment, supplies, and persons necessary to establish and manage temporary housing, quarantine, and isolation facilities related to COVID-19;
  7. Persons designated by federal, state, or local authorities for medical, isolation, or quarantine purposes; and
  8. Persons necessary to provide other medical or emergency services, the supply of which may be affected by the COVID-19 response.

Direct assistance does not include routine commercial deliveries, including mixed loads with a nominal quantity of qualifying emergency relief added to obtain the benefits of this emergency declaration.

Direct assistance terminates when a driver or commercial motor vehicle is used in interstate commerce to transport cargo or provide services that are not in support of COVID-19 emergency relief efforts or when the motor carrier dispatches a driver or commercial motor vehicle to another location to begin operations in commerce. Upon termination of direct assistance, the motor carrier and driver are subject to the standard DOT requirements, except that a driver may return empty to the motor carrier’s terminal or the driver’s normal work reporting location without complying with Parts 390 through 399.

When a driver is moving from emergency relief efforts to normal operations, a 10-hour break is required when the total time a driver operates conducting emergency relief efforts, or a combination of emergency relief and normal operations, equals 14 hours.

The declaration does not permit motor carriers to require or allow fatigued drivers to operate a commercial motor vehicle. A driver who informs a carrier that they need immediate rest must be given at least 10 consecutive hours before they are required to return to service.

The declaration and its extension took immediate effect and are operative through May 15, 2020.

Read the declaration and its extension.

2

EEOC Issues Updated Covid-19 Technical Assistance Publication

The EEOC publishes FAQ regarding the FEEOL and COVID-19.

On April 17, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) posted an updated technical assistance publication addressing questions arising under the Federal Equal Employment Opportunity Laws related to the COVID-19 pandemic. The publication, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, expands on a previous publication that focused on the ADA and Rehabilitation Act, and adds questions-and-answers to anticipating return to work situations, making reasonable accommodations, and harassment.

3

OSHA to Exercise Enforcement Discretion for Good Faith Efforts During COVID-19

OSHA released interim guidance regarding evaluating employer’s good faith effort to comply with safety and health standards during the coronavirus pandemic. 

On April 16, 2020, the Occupational Safety and Health Administration (OSHA) released interim guidance for compliance safety and health officers when evaluating an employer’s good faith efforts to comply with safety and health standards during the coronavirus pandemic. The interim guidance is time-limited and in effect only during the current public health crisis.

According to the guidance, current infection control practices may limit the availability of employees, consultants, or contractors who normally provide OSHA training, auditing, equipment inspections, testing, and other essential safety and industrial hygiene services. Business closures and other restrictions may also preclude employee participation in training if trainers are unavailable, and access to medical testing facilities may be limited or suspended. Therefore, during an inspection, compliance safety and health officers are directed to assess an employer’s efforts to comply with standards that require annual or recurring audits, reviews, training, or assessments. For instance, officers are directed to evaluate whether the employer:

  • Explored all options to comply with applicable standards (use of virtual training or remote communication strategies);
  • Implemented interim alternative protections, such as engineering or administrative controls; and
  • Rescheduled required annual activity as soon as possible.

Employers unable to comply with OSHA requirements because local authorities required their workplace to close should demonstrate a good faith attempt to meet applicable requirements as soon as possible following the workplace’s re-opening. Additionally, OSHA will strongly consider an employer’s good faith compliance attempts when determining whether to cite a violation. However, OSHA may issue a citation if it finds an employer cannot demonstrate any efforts to comply. OSHA is also developing a program to conduct monitoring inspections from a randomized sampling of cases where the agency noted, but did not cite, violations. This is to ensure employers have taken corrective actions once normal activities resume.

The guidance took effect on April 16, 2020 and is in effect until further notice.

Read the interim guidance and more on OSHA’s COVID-19 webpage.

 

4

OSHA Recordkeeping Requirements and COVID-19

OSHA released interim guidance regarding enforcing its recordkeeping requirements in recording COVID-19 cases.

On April 10, 2020, the Occupational Safety and Health Administration (OSHA) issued interim guidance for enforcing its recordkeeping requirements in recording COVID-19 cases. COVID-19 is a recordable illness, and employers are responsible for recording cases of the disease if the case:

In areas where there is ongoing community transmission, employers other than those in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting, and law enforcement services), and correctional institutions may have difficulty making determinations about whether workers who contracted COVID-19 did so due to exposures at work. Accordingly, until further notice, OSHA will not enforce its recordkeeping requirements to require these employers to make work-relatedness determinations for COVID-19 cases, except where:

  • There is objective evidence that a COVID-19 case may be work-related; and
  • The evidence was reasonably available to the employer. Employers of workers in the healthcare industry, emergency response organizations, and correctional institutions must continue to make work-relatedness determinations. 

OSHA’s enforcement policy will provide certainty to the regulated community and help employers focus their response efforts on implementing good hygiene practices in their workplaces and otherwise mitigating COVID-19’s effects.

Read the interim guidance and more on OSHA’s COVID-19 webpage.

5

EEOC Issues Updated Covid-19 Technical Assistance Publication

The frist round of FAQ regarding Covid-19 from the EEOC.

On April 9, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) posted an updated and expanded technical assistance publication addressing questions under the federal equal employment opportunity laws related to the COVID-19 pandemic. The publication, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, expands on a previous publication that focused on the ADA and Rehabilitation Act, and adds responses to common inquiries in the following topics:

  • Disability related inquiries and medical exams;
  • Confidentiality of medical information;
  • Hiring and onboarding;
  • Reasonable accommodation; and
  • Furloughs and layoffs.

The EEOC also provides additional resources related to the pandemic in an employment context.

6

OSHA Reminder that Retaliation for Reporting Unsafe Conditions Prohibited

OSHA’s reminder to employers regarding retaliation against workers reporting unsafe conditions.

On April 8, 2020, the Occupational Safety and Health Administration (OSHA) released a reminder to employers that it is illegal to retaliate against workers when they report unsafe and unhealthful working conditions, including during the coronavirus pandemic. Retaliation may include termination, demotion, denial of overtime or promotion, or reduction in pay or hours.

Under the Occupational Safety and Health Act (OSH Act), employees have the right to safe and healthy workplaces, and any worker who believes that their employer is retaliating against them for reporting unsafe working conditions is instructed to immediately contact OSHA.

Workers may contact OSHA or may file an online whistleblower complaint if they believe their employer has retaliated against them for exercising their rights under the whistleblower protection laws. The OSHA Whistleblower Protection Program webpage provides resources about worker rights, and includes fact sheets on whistleblower protections for employees in various industries along with frequently asked questions.

Read more about OSHA whistleblower protections.

7

DOL Guidance on Federal Pandemic Unemployment Compensation

The DOL’s announcement of Unemployment Insurance Guidance Letter. 

On April 4, 2020, the U.S. Department of Labor announced publication of its Unemployment Insurance Guidance Letter 15-20 (UIPL 15-20) providing guidance to states for Federal Pandemic Unemployment Compensation (FPUC). Under FPUC, states will administer an additional $600 weekly payment to certain eligible individuals who are receiving other benefits. This provision is contained in § 2104 of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) enacted on March 27, 2020.

The program allows states to provide an additional $600 per week benefit to individuals who are collecting regular unemployment compensation, including Unemployment Compensation for Federal Employees (UCFE) and Unemployment Compensation for Ex-Servicemembers (UCX), as well as the following unemployment compensation programs: 

  • Pandemic Emergency Unemployment Compensation (PEUC);
  • Pandemic Unemployment Assistance (PUA);
  • Extended Benefits (EB);
  • Short­Time Compensation (STC);
  • Trade Readjustment Allowances (TRA);
  • Disaster Unemployment Assistance (DUA); and
  • Payments under the Self-Employment Assistance (SEA) program.

FPUC benefit payments are fully federally funded.

The benefit payments under FPUC may begin as soon as the week after the execution of a signed agreement between the Department of Labor and states. The timeline for these payments will vary by state. As states begin providing this payment, eligible individuals will receive retroactive payments back to their date of eligibility or the signing of the state agreement, whichever came later. All states have executed agreements with the department as of March 28, 2020. The CARES Act specifies that FPUC benefit payments will end after payments for the last week of unemployment before July 31, 2020.

The guidance letter also includes guidance about protecting unemployment insurance program integrity, as the provisions in the CARES Act operate in tandem with the fundamental eligibility requirements of the federal-state UI program. The department is working with states receiving funding under the act to provide unemployment insurance benefits to those who are entitled to them.

Read the announcement.

8

Temporary Rule: Paid Leave under the Families First Coronavirus Response Act

New actions and protections under the DOL regarding the FFCRA. 

On April 1, 2020, the U.S. Department of Labor announced new action regarding the protections and relief offered by the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act, both part of the Families First Coronavirus Response Act (FFCRA). The FFCRA reimburses private employers with fewer than 500 employees with tax credits for the cost of providing employees with paid leave taken for specified reasons related to COVID-19.

The Department’s Wage and Hour Division (WHD) posted a temporary rule issuing regulations pursuant to this new law, effective April 1, 2020. The regulations implement public health emergency leave under Title I of the Family and Medical Leave Act (FMLA) and emergency paid sick leave to assist working families facing public health emergencies arising out of the COVID-19 global pandemic. The leave provisions are created by a time-limited statutory authority established under the FFCRA and are set to expire on December 31, 2020. The temporary rule is effective from April 1, 2020 through December 31, 2020. 

In this temporary rule, the department:

  • Issues rules relevant to the administration of the FFCRA’s paid leave requirements.
  • Provides direction for administration of the Emergency Paid Sick Leave Act (EPSLA), which requires that certain employers provide up to 80 hours of paid sick leave to employees who need to take leave from work for certain specified reasons related to COVID-19. These reasons may include the following:
    • The employee or someone the employee is caring for is subject to a government quarantine order or has been advised by a health care provider to self-quarantine;
    • The employee is experiencing COVID-19 symptoms and is seeking medical attention; or,
    • The employee is caring for their son or daughter whose school or place of care is closed or whose childcare provider is unavailable for reasons related to COVID-19.
  • Provides direction for administration of the Emergency Family and Medical Leave Expansion Act (EFMLEA), which requires that certain employers provide up to 10 weeks of paid, and two weeks unpaid, emergency family and medical leave to eligible employees if the employee is caring for their son or daughter whose school or place of care is closed or whose childcare provider is unavailable for reasons related to COVID-19.

Read more here and here.

9

COVID-19 and Employee Retention Credit

Information regarding a Refundable tax credit of 50% of up to $10,000 in wages. 

On March 31, 2020, the U.S. Treasury Department and the Internal Revenue Service launched the Employee Retention Credit. The refundable tax credit is 50 percent of up to $10,000 in wages paid by an eligible employer whose business has been financially impacted by COVID-19. The credit is available to all employers regardless of size, including tax-exempt organizations, with the following two exceptions:

  • State and local governments and their instrumentalities; and
  • Small businesses who take small business loans.

Qualifying employers must fall into one of the following categories, which are calculated each calendar quarter:

  • The employer’s business is fully or partially suspended by government order due to COVID-19 during the calendar quarter.
  • The employer’s gross receipts are below 50 percent of the comparable quarter in 2019. Once the employer’s gross receipts go above 80 percent of a comparable quarter in 2019, they no longer qualify after the end of that quarter.

In calculating the credit, the amount of the credit is 50 percent of qualifying wages paid up to $10,000 in total. Wages paid after March 12, 2020, and before January 1, 2021, are eligible for the credit. Wages considered for the credit are not limited to cash payments, but also include a portion of the cost of employer provided health care.

Qualifying wages are based on the average number of a business’s employees in 2019 as follows:

  • If the employer had 100 or fewer employees on average in 2019, the credit is based on wages paid to all employees, regardless if they worked or not. If the employees worked full-time and were paid for full-time work, then the employer still receives the credit.
  • If the employer had more than 100 employees on average in 2019, then the credit is allowed only for wages paid to employees who did not work during the calendar quarter.

Employers may be immediately reimbursed for the credit by reducing their required deposits of payroll taxes that have been withheld from their employees’ wages by the amount of the credit. Eligible employers will report their total qualified wages and the related health insurance costs for each quarter on their quarterly employment tax returns, or Form 941, beginning with the second quarter. If the employer’s employment tax deposits are not sufficient to cover the credit, the employer may receive an advance payment from the IRS by submitting Form 7200, Advance Payment of Employer Credits Due to COVID-19. Form 7200 may also be used by eligible employers to request an advance of the Employee Retention Credit.

Read more here.

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State Specific Labor Law Updates:

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Paycheck Protection Program: Preparing Your Application

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Paycheck Protection Program: Preparing Your Application

Make sure you have the proper information when applying for the Paycheck Protection Program. Most bank application sites are complete or nearing completion. We recommend that you begin preparing and gathering documentation that will make the process as fast and easy as possible.

What is the Small Business Paycheck Protection Program?

This Government funded relief program provides small businesses with funds to pay up to 8 weeks of payroll costs, including benefits. Funds can also be used to pay interest on mortgages, rent, and utilities.  (Per treasury.gov as of April 7, 2020)

For full details regarding this program, see the quick guide the U.S. Treasury has provided.

1. How to Determine Your Maximum Loan Amount

The maximum loan amount is based on 2.5X your 2019 average monthly payroll costs and is subject to a $10 million cap. Payroll costs will be capped at $100,000 annualized for each employee.

If you are a seasonal or new business, you will use different applicable time periods for your calculation.

For seasonal employers:

  • the period between February 15, 2019 through June 30, 2019 or;
  • at the election of the borrower, March 1, 2019 through June 30, 2019
  • For businesses not in operation during the period between February 15, 2019 and June 30, 2019
    • The period between January 1, 2020 and February 29, 2020

2. How to Determine Your Payroll Costs

Depending on your business type, one or more of the following forms of documentation are required for payroll calculation and verification. You will need to include these documents with your application.

Employers:

IRS Form 941 (Quarterly Form)

  • Line 1: Lists number of employees who received wages, tips, or other compensation for the pay period
  • Line 2: Lists wages, tips & other compensation (will need to sum line 2 for the last 4 quarters to arrive at annual total)
  • Line 12: Total taxes after adjustments & credits (this number is excluded from the payroll costs calculation)

IRS Form 944 (Annual Form)

  • Line 1: Lists wages, tips, & other compensation for the entire year
  • Line 7: Total taxes after adjustments & credits (this number is excluded from the payroll costs calculation)

Contractors:

IRS Form 1099

Sole Proprietors:

IRS Form 1040

  • Schedule C – line 31: Net profit or (loss)

What if I Don't Have This Documentation?

For borrowers that do not have the above documentation, you must provide other supporting documentation, such as bank records, sufficient to demonstrate the qualifying payroll amount.

Additional Guidance and Details

For more detailed information and additional guidance on how to appropriately calculate payroll costs, employers can find all the latest information at home.treasury.gov.

Additional documents may be requested as required

What Does Emergency Coronavirus Bill Mean For Employers

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FFCRA Updates:

On Friday, March 20, the U.S. Treasury, IRS, and U.S. Department of Labor announced their plans for making the paid leave provisions in the Families First Coronavirus Response Act (FFCRA) less burdensome for small businesses. Key points include:

  • To take immediate advantage of the paid leave credits, businesses can retain and access funds that they would otherwise pay to the IRS in payroll taxes. If those amounts are not sufficient to cover the cost of paid leave, employers can seek an expedited advance from the IRS by submitting a streamlined claim form that will be released next week.
  • The Department of Labor will release “simple and clear” criteria for businesses with fewer than 50 employees to apply for exemptions from the leave provisions related to school and childcare closures; and
  • There will be a 30-day non-enforcement period for businesses making a reasonable effort.

 

Business slowdowns related to the spread of COVID-19 have made it hard to imagine how they could bear any additional expenses. We encourage anyone with these concerns to read the full announcement.

Emergency Coronavirus Bill Signed Into Law March 18, 2020

About H.R. 6201 Division D-F | Emergency Paid Leave Act of 2020

H.R 6201 legislation provides paid leave, establishes free testing, protects public health workers, and provides important benefits to children and families.

President Trump was quick to finalize the Emergency Coronavirus Bill, H.R.6201 – Families First Coronavirus Response Act this evening, March 18, 2020 after the revised proposed bill made it through the Senate. Passed quickly through the House of Representatives on March 14, the Nation has been anxiously awaiting to see what this bill will mean for businesses and their staff. H.R.6201 will go into effect on April 2, 2020 and will date out on December 31, 2020.

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Many small businesses fear the impact this could have on their financials at an already uncertain time. Under the bill, many employers will have to provide 80 hours of paid-sick-leave benefits for several reasons including:

• If the employee has been ordered to quarantine or isolate or has been advised by a health care provider to self-quarantine because of COVID-19.

• If Employees use paid sick leave if they have symptoms of COVID-19 and are seeking a medical diagnosis,

• If they are caring for a relative who is in quarantine or isolation.

• Or if their child’s school or child care service is closed because of the public health emergency.

The first 10 days of emergency FMLA leave may consist of unpaid leave, but the employee MUST BE PAID for each day of leave after. Paid-sick-leave benefits will be immediately available when the law takes effect and capped at $511 a day for a worker’s own care and $200 a day when the employee is caring for someone else. This benefit will also expire at the end of 2020.

Exemptions to the Family First Coronavirus Act

Employers that are required to offer emergency FMLA or paid sick leave will be eligible for refundable tax credits. 

• Employers with fewer than 50 workers can apply for an exemption from providing paid family and medical leave and paid sick leave if it “would jeopardize the viability of the business.”

• Gig-workers and other self-employed workers will be eligible for a tax credit to cover the benefits.

• Private businesses with more than 500 employees are not covered by the bill.

Work From Home Sample Policies, Official Workplace Posters, CDC information and much more. A Free Resource from tryHRIS. 

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What Should Employers Do to Prepare for H.R. 6201?

Employers Are Urged to Review Their Sick Leave Policies in Depth

Do employees have the right to take time off if they are worried about contracting coronavirus? Can employers take temperatures before allowing workers in? Is it fair to allow some to work from home and not others? What happens if we have to pay everyone but only half the workforce is able to work remotely?

HR and other business leaders are likely considering these questions and many others  as COVID-19 makes its way through the United States.

What About the Government Small Business Loans?

H.R 6201 is sure to kick off the release of new funds into the Small Business funding programs currently making their way through government.

As of now the areas with small business loans available include: 

State of California # 16332

State of Connecticut # 16335

Contiguous Counties:

MASSACHUSETTS:
Berkshire, Hampden, Worcester.

NEW YORK
Dutchess, Putnam, Westchester.

District of Columbia

Contiguous Counties:

MARYLAND:
Montgomery, Prince Georges.

VIRGINIA:
Alexandria City, Arlington, Fairfax.

State of Maine 

Contiguous Counties:

NEW HAMPSHIRE:
Carroll, Rockingham, Strafford.

State of Montana

Contiguous Counties:

IDAHO:
Clearwater, Fremont, Idaho.

NORTH DAKOTA:
Divide, Williams.
 
WYOMING:
Park, Teton.

State of Nevada # 16341

Contiguous Counties:

ARIZONA:
Mohave.

 
IDAHO:
Cassia, Owyhee, Twin Falls.
 
OREGON:
Harney, Lake.

State of New Mexico

Contiguous Counties:

ARIZONA
Apache, Greenlee.

 
COLORADO:
Archuleta, Costilla, La Plata, Las Animas, Montezuma.
 
TEXAS:
Andrews, Cochran, Deaf Smith, El Paso, Gaines, Hartley, Loving, Oldham, Winkler, Yoakum.

State of Rhode Island

Contiguous Counties:

CONNECTICUT:
New London, Windham.

 
MASSACHUSETTS:
Bristol, Norfolk, Worcester.

State of Utah # 16338

Contiguous Counties:

ARIZONA:
Apache, Coconino, Mohave, Navajo.

COLORADO
Dolores, Mesa, Montezuma, Montrose, San Miguel.

WYOMING
Sweetwater, Uinta.

Washington State # 16333

Contiguous Counties:

IDAHO
Benewah, Latah, Nez Perce.

OREGON
Gilliam, Hood River, Morrow, Sherman, Umatilla, Wasco.

For continued updates and to see if your area has been added to the list visit the SBA.gov.

Doing Our Part to Assist Employers in Crisis.

Compliance can weigh down even the most experienced professionals, especially during times such as these. This is why we are offering small businesses 14 days at no cost to use our services and speak directly with seasoned HR Advisors prepared to answer all of their Coronavirus questions. 

Our HR Advisors, one click compliance Handbook, Compliance Database, HR Tools and Remote Employee Training are ready to help navigate HR through this Coronavirus crisis and all year long. 

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SPECIAL Employment Law Updates | March 2020

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As Coronavirus takes over our daily lives, the Federal and State Government release statements, information and business loans. We wait to hear final approval from the Senate for the proposed FMLA temporary updates for the Coronavirus Relief Bill and will update you here as soon as it passes.

Every industry is drowning in HR questions and our HR Advisors are prepared for every one of yours. Our online training keeps your employees learning and engaged remotely. We are ready to help you navigate during this crisis and all year long, for only $99 a month. 

March 2020 Employment Law Updates

19 States so far have released Employment Law Updates and Coronavirus Response Statements. 

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Employment Law Updates: March 2020

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1

SBA Disaster Assistance in Response to COVID-19

Specific States and Territories are offering low interest business loans. These locations are expanding, continue to check back if your area isn’t listed yet.

The U.S. Small Business Administration (SBA) is offering designated states and territories low-interest federal disaster loans for working capital to small businesses suffering substantial economic injury as a result of the Coronavirus (COVID-19). Upon a request received from a state’s or territory’s Governor, SBA will issue under its own authority, as provided by the Coronavirus Preparedness and Response Supplemental Appropriations Act that was recently signed by the President, an Economic Injury Disaster Loan declaration.

Read more on the SBA’s website.

2

IRS, Coronavirus (COVID-19), and High-Deductible Health Plans

The Internal Revenue Service (IRS) released Notice 2020-15 for high deductible health plans and expenses related to 2019 novel coronavirus (COVID-19).

On March 11, 2020, the Internal Revenue Service (IRS) released Notice 2020-15 for high deductible health plans and expenses related to 2019 novel coronavirus (COVID-19) stating that, until further guidance is released, a health plan that otherwise satisfies the requirements of a high deductible health plan (HDHP) under I.R.C. § 223(c)(2)(A) will not fail to be an HDHP merely because it provides health benefits associated with testing for and treatment of COVID-19 without a deductible, or with a deductible below the minimum deductible (self only or family) for an HDHP. Therefore, an individual covered by the HDHP will not be disqualified from being an eligible individual under § 223(c)(1) who may make tax-favored contributions to a health savings account (HSA). 

This does not modify previous guidance with respect to the requirements of an HDHP in any manner other than with respect to the relief for testing for and treatment of COVID-19. Vaccinations continue to be considered preventive care under § 223(c)(2)(C) for purposes of determining whether a health plan is an HDHP. Rather, the notice provides flexibility to HDHPs to provide health benefits for testing and treatment of COVID-19 without application of a deductible or cost sharing. Individuals participating in HDHPs or any other type of health plan should consult their particular health plan regarding the health benefits for testing and treatment of COVID-19 provided by the plan, including the potential application of any deductible or cost sharing.

Read Notice 2020-15.

3

CDC, OSHA, and Coronavirus

CDC and OSHA Response to COVID-19. Official Posters, Guidance, Public Health Response. 

In response to the COVID-19 (coronavirus) outbreak, the U.S. Centers for Disease Control (CDC) issued:

  • Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease, providing recommended workplace strategies for employers and guidance on how to decrease COVID-19 spread, how to respond to outbreaks, and additional resources; and
  • Public Health Response to the Coronavirus Disease 2019 Outbreak, providing a chronological timeline and summary of the virus, cases reported in the United States, and the agency’s public health response to the illness.

The CDC has also created the following posters for download:

Additionally, the U.S. Occupational Safety and Health Administration (OSHA) has created a COVID-19 website for workers and employers addressing the disease, providing guidance, and other resources for preventing exposure to and infection with the virus. We recommend that employers review the CDC and OSHA websites frequently, as the COVID-19 outbreak continues to develop.

4

HIPAA and COVID-19

The Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services (HHS) released a bulletin to ensure awareness of the ways that patient information may be shared under the HIPAA Privacy Rule.

In February 2020, the Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services (HHS) released a bulletin to ensure that Heath Insurance Portability and Accountability Act (HIPAA) covered entities, and their business associates, are aware of the ways that patient information may be shared under the HIPAA Privacy Rule in an outbreak of infectious disease or other emergency situation. The bulletin also reminds covered entities that the protections of the Privacy Rule are not set aside during an emergency and discusses the following HIPAA topics:

  • Sharing patient information
  • Treatment.
  • Public health activities.
  • Disclosures to family, friends, and others involved in an individual’s care and for notification.
  • Disclosures to prevent a serious and imminent threat.
  • Disclosure to the media or others not involved in the care of the patient/notification.
  • Minimum necessary (for most disclosures, a covered entity must make reasonable efforts to limit the information disclosed to that which is the “minimum necessary” to accomplish the purpose).
  • Safeguarding patient information.
  • HIPAA’s application to only covered entities and business associates.

The bulletin also provides links to the following resources:

HIPAA and Public Health, please visit: https://www.hhs.gov/hipaa/for-professionals/special-topics/public-health/index.html

General information on understanding the HIPAA Privacy Rule may be found at: https://www.hhs.gov/hipaa/for-professionals/privacy/index.html

Review the bulletin.

5

ERISA and Actual Knowledge

The Supreme Court further defines the intersection of “actual knowledge” and prudent investments in Intel Corporation Investment Policy Committee et al. v. Sulyma, under the Employee Retirement Income Security Act (ERISA) and within retirement plan manager duties.

On February 26, 2020, the Supreme Court of the United States (SCOTUS) unanimously determined the intersection of “actual knowledge” and prudent investments in Intel Corporation Investment Policy Committee et al. v. Sulyma, under the Employee Retirement Income Security Act (ERISA) and within retirement plan manager duties.

Under ERISA, plan fiduciaries’ (which include plan trustees, plan administrators, and members of a plan’s investment committee) primary responsibilities are to run the plan solely in the interest of participants and beneficiaries and for the exclusive purpose of providing benefits and paying plan expenses. Fiduciaries must also act prudently and must diversify the plan’s investments in order to minimize the risk of large losses. For beneficiaries, ERISA requires that they bring a lawsuit against a plan fiduciary for imprudent investments within six years; however, if the beneficiary has “actual knowledge” of the imprudent investments, then the suit must commence within three years of gaining that knowledge.

In this case, Christopher Sulyma was an Intel Corporation employee from 2010 to 2012 who sued the corporation in October 2015 claiming it violated ERISA by investing large portions of plan assets in imprudent investments, resulting in significant losses for plan participants. However, Sulyma filed his case more than three years after the administrators disclosed their investment decisions to him, so the administrators argued his claim was untimely. Although the claim was filed within six years of the alleged breaches, it was more than three years after petitioners had disclosed their investment decisions to Sulyma and thus he had actual knowledge and missed the deadline to file his suit; therefore, Intel argued there should be no suit (it was untimely).

The court held that Sulyma did not have actual knowledge of the imprudent investments triggering the three-year shortened timeframe to bring a lawsuit. The court detailed that although Sulyma visited the website that hosted the disclosures many times during his employment, he testified that he did not remember reviewing the relevant disclosures and that he was unaware of the allegedly imprudent investments while working at Intel. The court went on to clarify that, “[i]f a plaintiff is not aware of a fact, he does not have ‘actual knowledge’ of that fact however close at hand the fact might be . . .” and “As presently written [ERISA] requires more than evidence of disclosure alone. That all relevant information was disclosed to the plaintiff is no doubt relevant in judging whether he gained knowledge of that information. [But to meet ERISA’s] ‘actual knowledge’ requirement . . . the plaintiff must in fact have become aware of that information.” In other words, SCOTUS held that Sulyma could have known about the investments from the disclosures, but according to his testimony he did not and therefore did not file his lawsuit too late.

The decision took effect on February 26, 2020.

Read about ERISA fiduciary responsibilities and SCOTUS’s decision.

6

Electronic Reporting OSHA Form 300A

Those that meet any of the following criteria are not required to submit their information for the Occupational Safety and Health Administration (OSHA) Form 300A data.

The deadline for electronically reporting the Occupational Safety and Health Administration (OSHA) Form 300A data for calendar year 2019 was March 2, 2020. However, not all establishments need to submit their OSHA 300A Data. For example, those that meet any of the following criteria are not required to submit their information:

  • The establishment’s peak employment during the previous calendar year was 19 or fewer, regardless of the establishment’s industry.
  • The establishment’s industry is on this list, regardless of the size of the establishment.
  • The establishment had a peak employment of between 20 and 249 employees during the previous calendar year and the establishment’s industry is not on this list.

 

Note, these criteria apply at the establishment level, not to the company as a whole.

The collection of calendar year 2019 data and beyond will include the collection of each establishment’s Employer Identification Number (EIN). 

Read more about OSHA injury and illness recordkeeping and reporting requirements here.

Download all March 2020 Law Updates.

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