OSHA’s COVID-19 Poster Now Available in 13 Translations

On May 4th, 2020, the U.S. Department of Labor’s (DOL’s) Occupational Safety and Health Administration (OSHA) published its “Ten Steps All Workplaces Can Take to Reduce Risk of Exposure to Coronavirus” poster in 11 additional language translations.

Originally released on April 6th, in English and Spanish, the non-mandatory poster highlights 10 infection prevention measures every employer can implement to protect workers’ safety and health. Safety measures include:

  • encouraging sick workers to stay home;
  • establishing flexible worksites and staggered work shifts;
  • discouraging workers from using other workers’ phones, desks, and other work equipment; and
  • using Environmental Protection Agency-approved cleaning chemicals with label claims against the coronavirus.

The poster is now available in the following languages:

The additional translations are OSHA’s latest efforts to educate and protect America’s workers and employers during the coronavirus pandemic.

General Duty Clause

Even though the poster is not mandatory to be displayed in the workplace, all employers have an obligation to provide their employees with a place of employment that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” This requirement is included within OSHA’s General Duty Clause. By following the suggested steps listed on the poster, employers can reasonably state that they took preventative measures to keep workers safe from contracting COVID-19 in the workplace.

Other Critical OSHA Resources on COVID-19

In addition to the posters, OSHA has several other resources available to provide guidance for employers to keep workers safe & comply with existing regulations during the COVID-19 crisis:

  • a March 2020 publication entitled “Preparing Workplace for COVID-19,” which provides in-depth guidance to employers in both essential and non-essential industries;
  • a useful overview of which OSHA standards and record keeping rules applyduring the current pandemic;
  • an enforcement memorandum regarding N95 respirator shortages and respiratory protection for affected health workers;
  • an April enforcement memorandum for recording cases of COVID-19; and
  • interim guidance on specific worker groups with the highest risk of COVID-19 exposure.

In this time of uncertainty due to the global COVID-19 pandemic, employers have a responsibility to keep the workplace safe from hazards, coronavirus being one of them. By following the information provided on the latest OSHA posters, in the languages that your workforce and customers will understand, employers can showcase their attempts to keep individuals healthy and avoid receiving possible fines and penalties.

 


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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EBSA Releases Updated Model COBRA Notices

The U.S. Department of Labor’s (DOL) Employee Benefits Security Administration (EBSA) has recently announced changes to specific notices required under the Consolidated Omnibus Budget Reconciliation Act of 1986 (COBRA).

Generally speaking, COBRA allows employees (and their families), who would otherwise lose their group health coverage due to certain life events, to continue their same group health coverage. These events include:

  • termination or reduction in hours,
  • death of a covered employee,
  • divorce or legal separation,
  • Medicare entitlement;
  • and loss of dependent status.

Businesses that employed fewer than 20 employees on more than 50% of its typical business days in the previous calendar year are exempt from federal COBRA requirements, but may fall under “mini-COBRA” laws at the state level, which can vary significantly by state.

Under the federal law, covered group health plans must provide covered employees and their families with certain notices explaining their COBRA rights. A group health plan must provide each covered employee and spouse (if any) with a written notice of COBRA rights “at the time of commencement of coverage” under the plan (known as the general notice). A group health plan must also provide qualified beneficiaries with a notice which describes their rights to COBRA continuation coverage and how to make an election (known as the election notice).

On May 4th, 2020, the EBSA issued a revised model general notice and a revised model election notice, both of which now provide additional information to address COBRA’s interaction with Medicare. The model notices explain that there may be advantages to enrolling in Medicare before, or instead of, electing COBRA. It also highlights that if an individual is eligible for both COBRA and Medicare, electing COBRA coverage may impact enrollment into Medicare as well as certain out-of-pocket costs.

Plan administrators can use the new model notices to meet requirements of notifying plan participants and beneficiaries of their rights under COBRA and qualified beneficiaries of their rights to elect COBRA coverage.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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COVID-Related Resources for Benefit Plans Released

On April 28th, 2020, the U.S. Department of Labor’s (DOL’s) Employee Benefits Security Administration (EBSA) issued a number of items under Title I of the Employee Retirement Income Security Act of 1974 (ERISA) to help participants and beneficiaries of employee benefit plans, and their service providers, who have been impacted by the coronavirus outbreak. These items include a final rule, new department guidance, and a frequently asked questions document.

Final Rule Extending Time Frames

 The Department of Labor’s final rule was issued jointly with the Department of the Treasury and Internal Revenue Service, and allows the following:

  • The extension of certain time frames affecting participants’ rights to healthcare coverage, portability, and continuation of group health plan coverage under COBRA; and
  • The extension of the time allowed for plan participants to file or perfect benefit claims or appeals of denied claims.

These extensions provide participants and beneficiaries of employee benefit plans additional time to make important health coverage decisions that affect their benefits during the coronavirus outbreak. The joint notice is posted on EBSA’s website and will be published in an upcoming edition of the Federal Register.

New EBSA Guidance on Notices and Disclosures

During this period when many employees are performing their jobs from locations other than the physical workplace, the EBSA Disaster Relief Notice 2020-01 extends the time allowed for plan officials to furnish benefit statements, annual funding notices, and other notices and disclosures required by ERISA. Employers, however, still have to make a good faith effort to furnish the documents as soon as administratively practicable. The Disaster Relief Notice further explains that “good faith” includes the use of electronic alternative means of communicating with plan participants and beneficiaries when possible, including:

  • email,
  • text messages, and
  • continuous access websites.

The Notice also includes compliance assistance guidance on plan loans, participant contributions and loan payments, blackout notices, Form 5500 and Form M-1 filing relief, and other general compliance guidance on ERISA fiduciary responsibilities.

Frequently Asked Questions

Finally, the EBSA issued a set of Frequently Asked Questions (FAQs) on health benefit and retirement benefit issues to help employee benefit plan participants, beneficiaries, plan sponsors, and employers impacted by the coronavirus outbreak understand their rights and responsibilities under ERISA.

Even during this time of crisis, the EBSA is committed to assure the security of the retirement, health, and other workplace related benefits of America’s workers and their families.

According to Assistant Secretary of Labor for EBSA, Preston Rutledge, “EBSA will continue to safeguard the employee benefits of American workers while ensuring that employers and plans have the flexibility they need to continue delivering benefits during this challenging time.”

 


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Revised M-274 Handbook for Employers Now Available

In a news release dated April 28th, 2020, the U.S. Citizenship and Immigration Services Department (USCIS) announced that an updated version of the M-274, Handbook for Employers: Guidance for Completing Form I-9 is has been published. The M-274 provides employers with detailed guidance for completing Form I-9, Employment Eligibility Verification.

Summary of M-274 Changes

 The following are some of the significant changes included within the M-274 Handbook:

  • Updates Based the Form I-9 Revision (10/21/2019) – These include clarifications of acceptable authorization documents included in List B and List C, and further clarification into who can serve as an employee’s authorized representative.
  • Major Guidance Changes – Clarifies how employers should enter documentation expiration date changes and revises cap-gap extension documentation requirements.
  • New Content – Includes new rules on how to complete a Form I-9 with automatically extended Employment Authorization Document Cards; verifying employment authorizations for Native American employees born in Canada; and new guidance specifically created for state employment agencies.
  • Other Clarifications – An explanation into the purpose of the Preparer/Translator Supplement; determining “Alien authorized to work until” document expiration dates; and a review of prohibited Form I-9 practices.

The updates to the M-274 coincides with the effective date of the recently revised Form I-9. Beginning May 1st, 2020, employers are required to use the latest edition of the Form I-9 to verify employment eligibility for newly hired individuals. The new form has a date of 10/21/19 in the lower left corner, and an expiration date of 10/31/2022 in the upper right corner.

Until April 30th, employers could use the previous version of the Form I-9 without penalty. Going forward, however, any employer who uses the outdated form can be subject to investigations and fines.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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UPDATED: $484 Billion Stimulus Package Signed Into Law

On April 24th , President Donald J. Trump approved a new stimulus relief package that includes hundreds of billions of dollars in new funding for small businesses hurt by the coronavirus outbreak. The $484 billion package also includes monies for hospitals and expanded COVID-19 testing. This proposed bill comes after the passage of a $2 trillion rescue package that Congress approved last month.

To specifically support small businesses, the stimulus authorizes an additional $320 billion to fund the Paycheck Protection Program (PPP), which was created as part of March’s unprecedented rescue package. The PPP consisted of offering forgivable loans to small businesses to pay their employees during the COVID-19 crisis. Due to a lapse in appropriations funding, as of April 17th, the Small Business Administration (SBA) was unable to accept any new applications for the PPP.

Many of the large banks who were accepting applications for the PPP carried stipulations that they would only work with businesses who were current members. In order to better serve potential applicants, $60 billion of the $320 billion earmarked for the PPP has been carved-out for community-based lenders, as well as mid-sized banks, which can better serve smaller businesses and minority-owned firms, organizations that are less likely to have an existing relationship with a larger bank.

The $484 billion stimulus package also contains $60 billion for the SBA’s Economic Injury Disaster Loan Program, which offers emergency grants of up to $10,000 to businesses awaiting funding on a disaster loan. Like the PPP, this program also ran out of funding earlier this month.

Now that this stimulus package has been signed into law by the President, funding should quickly begin again on both programs.

Other SBA Funding Programs

Due to the fact that initial funding for both the PPP and Economic Injury Disaster Loan Program ran out in a matter of days, small businesses should be aware that the SBA does offer other loan options that are not necessarily COVID-19 related. These programs include:

  • 7(a) program – This program offers loans up to $5,000,000 as an all-inclusive loan for eligible businesses. The funds can be used for working capital, expansion/renovation, new construction, land purchase or building purchase, equipment purchase, fixtures, lease-hold improvements, debt refinancing for compelling reasons, seasonal lines of credit, inventory, or to start a business.
  • Express loans – These can provide up to $350,000 for up to seven years with an option to revolve the loan. Turnaround time is about 36 hours to know if you are approved or denied.
  • 504 loan – This loan is limited for the acquisition of refinancing of fixed assets. It is to help with job creation and retention.
  • Microloans – Nonprofit lending organizations may offer microloans to underserved markets. These loans can be funded up to $50,000 and must be used for working capital, supplies, machinery, equipment, or fixtures but not real estate.
  • Export loans – The SBA offers a number of export loans for small businesses. These include the Export Express loan, Export Working Capital program, and International Trade loan program.
  • The 8(a) Business Development program was created for small businesses owned by economically or socially disadvantages entities or individuals.

The SBA has also announced the Small Business Debt Relief Program, where they will cover all loan payments on non-disaster SBA loans, including 7(a), 504, and microloans, consisting of principal, interest, and fees, for six months. This program would apply to businesses that qualify for and receive funding prior to September 27th, 2020.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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EEOC Updates COVID-19 Guidance on Anti-Discrimination Laws

On April 23rd, 2020, the Equal Employment Opportunity Commission (EEOC) announced additions to their technical assistance guidance, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” providing employers with crucial information on how to avoid possible workplace discrimination claims during the coronavirus pandemic.

Provided in a “question and answer” format, the frequently updated resource covers topics important to employers today dealing with the employment ramifications of COVID-19. The subject matter discussed all falls under the EEOC’s enforcement of workplace anti-discrimination laws including:

Specific COVID-19-related information within the guidance includes:

  • Disability-Related Inquiries and Medical Exams;
  • Hiring and Onboarding;
  • Reasonable Accommodations;
  • Pandemic-Related Harassment; and
  • Returning to Work

The EEOC wants to remind employers that all EEO laws are in full effect during the time of the global coronavirus pandemic. Just as the COVID-19 pandemic evolves, so does the guidance provided by the EEOC and other government agencies. To keep up to date on any releases involving workplace anti-discrimination laws during this uncertain time, employers can visit the EEOC Newsroom webpage for any new and important information.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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White House Issues Guidance on Reopening the United States

During a conference call with United States governors, President Donald Trump unveiled his guidelines for “Opening Up America Again.” The call, which took place on April 16th, outlined recommendations made by the White House for states to reopen based on several factors. The overall plan also contains three phases that must be followed by individuals and employers for states to begin easing social distancing measures and stay-at-home orders. Each phase would allow more and more restrictions to be lifted. There are some guidelines, however, that must be followed throughout the entire process of reopening and, possibly, afterwards.

Criteria for States to Achieve Before they Can Begin Phased Openings

  • Symptoms: There must be a downward trajectory of influenza-like illnesses (ILI) reported within a 14-day period AND a downward trajectory of COVID-19-like syndromic reported within a 14-day period.
  • Cases: There must be a downward trajectory of documented cases within a 14-day period OR a downward trajectory of positive tests as a percent of total tests within a 14-day period (flat or increasing volume of tests).
  • Hospitals: Hospitals must treat all patients without crisis care AND create a robust testing program for at-risk healthcare workers, including emerging antibody testing.

Guidelines for All Phases for Individuals

The guidelines call for individuals to always practice the following instructions, no matter what stage of reopening the state is in:

Continue to Practice Good Hygiene

  • Wash your hands with soap and water or use hand sanitizer, especially after touching frequently used items or surfaces.
  • Avoid touching your face.
  • Sneeze or cough into a tissue, or the inside of your elbow.
  • Disinfect frequently used items and surfaces as much as possible.
  • Strongly consider using face coverings while in public, and particularly when using mass transit.

People who Feel Sick Should Stay Home

  • Do not go to work or school.
  • Contact and follow the advice of your medical provider.

Guidelines for All Phases for Employers

Employers would also be required to follow specific steps throughout the reopening process:

Develop and Implement Appropriate Policies

  • The policies need to be in accordance with federal, state, and local regulations and guidance, and be informed by industry best practices, regarding:
    • Social distancing and protective equipment
    • Temperature checks
    • Sanitation
    • Use and disinfection of common and high-traffic areas
    • Business travel
  • Create policies and procedures on workforce contact in order to trace employee movement after a positive COVID test.

Monitor Workforce for Indicative Symptoms

  • Do not allow symptomatic people to physically return to work until cleared by a medical provider

For more information on the guidelines to reopen America, including specific information for individuals and employers for each phase of the process, the White House has posted guidance on their website.

 

 


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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OSHA Releases Enforcement Guidance on Recording COVID-19 Cases

On April 10th, the U.S. Department of Labor’s (DOL’s) Occupational Safety and Health Administration (OSHA) issued interim guidance for enforcing OSHA’s recordkeeping requirements (29 CFR Part 1904) as it relates to recording cases of COVID-19.

Overview of OSHA Recordkeeping Requirements

Under OSHA recordkeeping rules, many employers with more than 10 employees are required to keep a record of serious work-related injuries and illnesses. (Some low-risk industries are exempted from the recordkeeping rule.) Examples of work-related injuries or illnesses that must be recorded include:

  • Any work-related fatality.
  • Any work-related injury or illness that results in loss of consciousness, days away from work, restricted work, or transfer to another job.
  • Any work-related injury or illness requiring medical treatment beyond first aid.
  • Any work-related diagnosed case of cancer, chronic irreversible diseases, fractured or cracked bones or teeth, and punctured eardrums.

The records must be maintained at the worksite for at least five years and, each February through April, employers must post a summary of the injuries and illnesses recorded the previous year. Also, if requested, copies of the records must be provided to current and former employees, or their representatives.

Recording COVID-19 Cases

Due to the wide scope of the current global pandemic, OSHA has announced that COVID-19 is now considered a recordable workplace illness and that employers are responsible for reporting cases of the virus if the following benchmarks are met:

  • The case is confirmed as a COVID-19 illness;
  • The case is work-related (i.e. an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness) as defined by 29 CFR 1904.5; and
  • The case involves one or more of the general recording criteria found in 29 CFR 1904.7, such as death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness.

OSHA does realize, however, that in areas where there is ongoing community COVID-19 transmission, employers other than those in the healthcare industry, emergency response organizations, and correctional institutions may have difficulty making determinations about whether workers who contracted COVID-19 did so due to exposure 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:

(1) There is objective evidence that a COVID-19 case may be work-related; and

(2) The evidence is 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 pursuant to 29 CFR Part 1904.

The guidance took effect the date of release (April 10th, 2020) and, even though it is intended to be time-limited for the duration of the coronavirus pandemic, will remain in effect until further notice.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Reminder: Retaliating Against Workers Who Report Unsafe Pandemic Conditions is Illegal

In this incredibly uncertain time, when things seem to be changing on a daily basis, the U.S. Department of Labor (DOL) wants to remind employers that some things have not changed: it is still illegal to retaliate against workers who report unsafe and unhealthful conditions to the Occupational Safety and Health Administration (OSHA). Acts of retaliation can include:

  • terminations,
  • demotions,
  • denials of overtime or promotion, or
  • reductions in pay or hours.

During the global COVID-19 pandemic, some employees may feel that their supervisors are not doing enough to keep them safe from exposure. Those employees could find themselves requesting better conditions from their managers, but then suffering consequences due to that request. In that situation, OSHA welcomes feedback.

“Employees have the right to safe and healthy workplaces,” said OSHA Principal Deputy Assistant Secretary Loren Sweatt. “Any worker who believes that their employer is retaliating against them for reporting unsafe working conditions should contact OSHA immediately.”

Employers who have retaliated against workers for voicing their concerns about unsafe conditions are in violation of OSHA’s Whistleblower Protection Program. This Program enforces the whistleblower provisions of more than 20 whistleblower statutes, protecting employees for reporting violations of various workplace safety and health laws and for engaging in other related protected activities.

Any affected worker has a right to file a whistleblower complaint online with OSHA (or 1-800-321-OSHA) if they believe their employer has retaliated against them for exercising their rights under the whistleblower protection laws enforced by the agency. Each law has a filing deadline, varying from 30 days to 180 days, which starts when the retaliatory action occurs.

A whistleblower complaint must allege four key elements:

  • The employee engaged in activity protected by the whistleblower protection law(s) (such as reporting a violation of law);
  • The employer knew about, or suspected, that the employee engaged in the protected activity;
  • The employer took an adverse action against the employee;
  • The employee’s protected activity motivated or contributed to the adverse action.

Employers who are found to have violated an employee’s rights under the whistleblower statutes could be subject to fines and penalties.

By responding to employee complaints and avoiding any appearance of retaliating against the individual making those complaints, employers will be meeting their OSHA obligations as well as keeping workers safe and protected in this difficult time.

 


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Final Rule Clarifies FFCRA Paid Sick Leave and Emergency Leave Obligations

On Monday, April 6th, the United States Department of Labor (DOL) released a final rule in the Federal Register interpreting the emergency paid sick leave (EPSL) and emergency family & medical leave (EFML) provisions of the Families First Coronavirus Response Act (FFCRA or Act). This latest rule offers more clarification into different parts of the Act, most notably requirements for proper documentation, recordkeeping, and exemption rules.

Documentation

There are different kinds of documentation that employers should require employees to submit depending on the reason for leave. If an employee is applying for leave under the EPSL provisions of the FFCRA, which allows for two weeks of paid leave, employees must provide:

  • A signed statement containing their name;
  • The date leave requested;
  • The COVID-19 qualifying reason for leave; and
  • A statement that they are unable to telework or work because of the COVID-19 reason.

Employees must also provide additional documentation based on the reason for leave:

  • If the employee is under quarantine, they need to provide the name of the government entity or health care provider that issued the quarantine order.
  • For leave to care for a child due to closure of school or daycare, documentation must include the name of the child being cared for, name of the school or child care provider and statement that it is closed due to COVID-19, and a statement that no other suitable person is available to care for the child during the period of requested leave.
  • For the care of an individual, the documentation needs to include the name of the government entity or isolation order that the individual is subject to, or the name of the health care provider advising the quarantine due to COVID-19 reasons.

Employees applying for leave under the EFML provisions, which allow 12 weeks of paid leave, need to provide the following:

  • For leave to care for their child due to closure of school or daycare, employees must include the name of child being cared for, name of school or child care provider and that it is closed due to COVID-19, and a statement that no other suitable person is available to care for the child during the period of requested leave.
  • For leave taken for an employee’s own serious health condition related to COVID-19, or that of employee’s spouse, son, daughter, or parent with a serious health condition related to COVID-19, normal FMLA requirements apply.

Small Employer Exemption

The DOL’s latest Final Rule also clarifies the small business exemption included within the FFCRA. The exemption includes such requirements as:

  • It’s limited to small private employers with less than 50 employees.
  • Employers should document the facts and circumstances to justify the denial of leave to employees and retain with its records. This documentation does not have to be sent directly to the DOL, but should be retained in the event of an audit or investigation.
  • FFCRA paid sick leave may be denied if the leave would jeopardize the viability of the business as a going concern. Permissible reasons for denial of leave as listed in the final rule include having business expenses and obligations exceeding business revenues; lack of available qualified workers to perform the duties of the employee requesting leave; and when the employee’s leave would jeopardize the continuity of the business due to their specialized knowledge and abilities.

Recordkeeping

The Final Rule also states that an employer is required to retain all documentation provided by employees for four years, regardless of whether leave was granted or denied. If an employee provided oral statements to support his or her request for paid sick leave or expanded family and medical leave, the employer is required to document and retain that information also for four years. If an employer denies an employee’s request for leave pursuant to the small business exemption, as mentioned earlier, the employer must document its authorized officer’s determination that the prerequisite criteria for that exemption are satisfied and retain such documentation for four years. The Rule also explains what documents the employer should create and retain to support its claim for tax credits, from the Internal Revenue Service (IRS), including Form 7200 and Form 941. That tax credit documentation should also be kept for four years.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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