Updated COVID-19 Anti-Discrimination Guidance Now Available

On June 11th, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) posted an updated and expanded technical assistance publication addressing questions that fall under federal Equal Employment Opportunity (EEO) laws related to the coronavirus pandemic.

The publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” provides approaches employers may adopt as they plan for employees returning to the workplace, including providing information to all employees about who to contact with requests for disability accommodation or other flexibilities, and inviting employees to make any requests in advance that the employer will consider on an individualized basis. There are also new recommendations about steps employers may take to prevent and address the harassment of employees who either are or are perceived to be of Chinese or other Asian national origin.  These recommendations include a reminder that workplace harassment may occur while employees are teleworking.

Organized 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:

While the majority of these laws apply only to businesses with a specific number of employees, (ADA, GINA, and Title VII apply to employers with 15 or more employees; ADEA applies to employers with 20 or more employees) there might also be equivalent state laws that need to be followed. Some of these state laws could apply to small employers with as few as 1 employee, depending on the state.  State fair employment practices agencies that enforce these state anti-discrimination laws almost always rely on EEOC guidance when applying and enforcing their own provisions regarding workplace harassment and discrimination.

Finally, 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 as businesses begin to reopen, 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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OSHA Releases Guidance on Masks in the Workplace

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has published a series of frequently asked questions and answers regarding the use of masks in the workplace.

“As our economy reopens for business, millions of Americans will be wearing masks in their workplace for the first time,” said Principal Deputy Assistant Secretary for Occupational Safety and Health Loren Sweatt. “OSHA is ready to help workers and employers understand how to properly use masks so they can stay safe and healthy in the workplace.”

The new guidance, released on June 10th, 2020:

  • outlines the differences between cloth face coverings, surgical masks, and respirators;
  • reminds employers not to use surgical masks or cloth face coverings when respirators are needed; and
  • notes the need for social distancing measures, even when workers are wearing cloth face coverings.

OSHA also recommends that employers train workers to follow the Centers for Disease Control and Prevention’s guidance on washing face coverings.

These frequently asked questions and answers mark the latest release from OSHA addressing protective measures for workplaces during the coronavirus pandemic. Previously, OSHA published numerous guidance documents for workers and employers, available at https://www.osha.gov/SLTC/covid-19/.

It is important for employers to note, however, that this guidance is not a standard or regulation, and it creates no new legal obligations. It contains recommendations as well as descriptions of mandatory safety and health standards. The recommendations from OSHA are only advisory in nature and informational in content, and the guidance intends to assist employers in providing a safe and healthful workplace, as required under the General Duty Clause of the Occupational Safety and Health Act of 1970 (OSH Act).

For more information on the OSH Act and other workplace safety obligations, visit www.osha.gov.


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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Workers’ Compensation Coverage of COVID-19 Illnesses

Each year, millions of workers are injured or become seriously ill because of their working environment. In fact, in November 2019, the Bureau of Labor Statistics (BLS) released their annual Employer-Reported Workplace Injuries and Illnesses Report stating that there were over 2.8 million nonfatal workplace injuries and illnesses during 2018. In certain circumstances, these affected workers may be eligible to receive workers’ compensation benefits under federal or state-specific insurance programs. During the coronavirus pandemic, the Occupational Safety and Health Administration (OSHA) has gone on the record stating that COVID-19 can be considered a recordable illness under the agency’s recordkeeping standards. The question becomes then, can employees file for workers’ compensation benefits due to a coronavirus infection?

COVID-19 Coverage Under Workers’ Compensation

According to the National Conference of State Legislatures, every state has its own unique workers’ compensation policies usually based on industry, occupation, and the size of the business. Generally, however, workers’ compensation does not cover certain illnesses like a cold or a flu that are considered “community-spread” illnesses. Community-spread illnesses usually cannot be directly traced to a specific workplace. COVID-19 has been classified by the Centers of Disease Control and Prevention (CDC) as an illness that can be community spread.

During the COVID-19 pandemic, however, some workers are at a higher risk of exposure to the virus while at work. These include health care workers, mass transit operators, and grocery store workers. If an individual in one of those industries does contract coronavirus, it can be reasonably assumed that the infection occurred in the workplace. Just because an employee works in a high-risk industry, however, it does not guarantee that a COVID-19 infection would be covered under workers’ compensation. To try and add clarity to the issue, states are creating and updating laws focusing on COVID-19 workplace infections.

State Response to COVID-19

In the wake of the large number of affected employees, some states are taking actions to extend workers’ compensation coverage to include first responders and health care workers impacted by coronavirus. A common way that some states have amended their workers’ compensation policies is to include that COVID-19 infections in certain workers are presumed to be work-related and covered under workers’ compensation. This places the burden on the employer and insurer to prove that the infection was not work-related, making it easier for those workers to file successful claims.

As of mid-April 2020, 23 U.S. states and territories had either enacted or have legislation pending addressing workers’ compensation coverage of COVID-19. The states that have already enacted COVID-19 provisions in workers’ compensation claims include: Alaska, Arkansas, California, Florida, Kentucky, Minnesota, New Hampshire, New Mexico, North Dakota, Utah, Washington, and Wisconsin. Employers in every state, however, should contact their local Department of Labor office to get the most up-to-date information on the laws that affect their businesses and COVID-19 workers’ compensation claims.


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 Revises Coronavirus Enforcement Policies

The U.S. Department of Labor’s (DOL’s) Occupational Safety and Health Administration (OSHA) has issued two revised policies for enforcing OSHA’s requirements with respect to the coronavirus. As businesses begin to reopen across the country, OSHA wanted to update these resources to ensure that employers are acting to protect their employees.

First, OSHA is increasing in-person inspections at all different types of workplaces. The new enforcement guidance reflects changing circumstances in which many non-critical businesses have begun to reopen in areas of lower community spread. The risk of transmission is lower in specific categories of workplaces, and personal protective equipment potentially needed for inspections is more widely available. OSHA staff will continue to prioritize COVID-19 inspections, and will utilize all enforcement tools as OSHA has historically done.

Second, OSHA has revised its previous enforcement policy for recording cases of coronavirus. Under OSHA’s recordkeeping requirements, coronavirus is a recordable illness, and employers are responsible for recording cases of the coronavirus, if the case:

Under the new policy, OSHA will enforce the recordkeeping requirements of 29 CFR 1904 for employee coronavirus illnesses for all employers. Given the nature of the disease and community spread, however, in many instances it remains difficult to determine whether a coronavirus illness is work-related, especially when an employee has experienced potential exposure both in and out of the workplace. OSHA’s guidance emphasizes that employers must make reasonable efforts, based on the evidence available to the employer, to ascertain whether a particular case of coronavirus is work-related.

Employers need to keep in mind that if they have to record a coronavirus illness, it does not necessarily mean that they have violated any OSHA standard. Following existing regulations, employers with 10 or fewer employees and certain employers in low hazard industries have no recording obligations; they only need to report work-related coronavirus illnesses that result in:

  • a fatality,
  • an employee’s in-patient hospitalization,
  • amputation, or
  • loss of an eye.

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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Retirement Plan Info Can Be Delivered Electronically Beginning July 27th

The U.S. Department of Labor’s (DOL) Employee Benefits Security Administration (EBSA) recently announced the publication of a Final Rule that expands the ability of private sector employers to communicate retirement plan information online or by email.

In a press release dated May 21st, 2020, the EBSA revealed that the Rule would allow employers to deliver disclosures to plan participants primarily electronically. This would in turn reduce printing, mailing, and related plan costs by an estimated $3.2 billion over the next decade. Also, by being provided digitally, disclosures would become more readily accessible and useful for plan participants. The Rule does however allow those who prefer paper disclosures to still receive those kinds of documents.

Prior to this announcement, on October 22nd, 2019, the EBSA issued a proposed rule to allow specific plan administrators that satisfy certain conditions to notify retirement plan participants that required disclosures, such as a plan’s summary plan description, would be posted on a website. This is known as a “Notice-and-access” system. Following that October proposal, plan sponsors and fiduciaries, plan service and investment providers, retirement plan and participant representatives, and other interested parties submitted several hundred written comments.

After review of the comments, the approved version of the Final Rule was constructed to allow retirement plan administrators to furnish certain required disclosures using the proposed “notice-and-access” model. Retirement plan administrators also have the option to use email to send disclosures directly to participants. These administrators must notify plan participants about the online disclosures, provide information on how to access the disclosures, and inform participants of their rights to request paper or opt out completely. The new Rule also includes additional protections for retirement savers, such as accessibility and readability standards for online disclosures and system checks for invalid electronic addresses.

In addition to potentially lowering plan costs, the DOL believes that the Final Rule may also help some employers and the retirement plan industry in their economic recovery from the disruption caused by the coronavirus pandemic. Many retirement plan representatives and their service providers, for example, have indicated that they are experiencing increased difficulties and, in some cases, a present inability to furnish ERISA disclosures in paper form. According to the EBSA, enhanced electronic delivery offers an immediate solution to some of these problems.

The Final Rule was published in the Federal Register on May 27th, 2020, and will go into effect 60 days later (July 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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Final Rule to Make Pay Bonuses More Accessible Released

On May 20th, 2020, the U.S. Department of Labor’s (DOL’s) Wage and Hour Division (WHD) announced a Final Rule that allows employers to pay bonuses or other incentive-based pay to salaried, nonexempt employees whose hours vary from week to week. The Final Rule clarifies that payments in addition to the fixed salary are compatible with the use of the fluctuating workweek method under the Fair Labor Standards Act (FLSA).

Overall, the original rule has been revised in a non-substantive way to make it easier to read, so employers will be able to better understand the fluctuating workweek method. The following specific additions and updates are also included:

  • Language is added to 29 CFR 778.114(a) to expressly state that employers can pay bonuses, premium payments, or other additional pay, such as commissions and hazard pay, to employees compensated using the fluctuating workweek method of compensation. (The rule also states that such supplemental payments must be included in the calculation of the regular rate of pay unless they are excludable under FLSA sections 7(e)(1)–(8)).
  • The Final Rule grants employers greater flexibility to provide bonuses or other additional compensation to nonexempt employees whose hours vary from week to week, and eliminates any disincentive for employers to pay additional bonus or premium payments to such employees.
  • The Rule also addresses the different views expressed between the DOL and courts ― and even among courts ― that have created legal uncertainty for employers regarding the compatibility of various types of supplemental pay with the fluctuating workweek method.
  • Examples have also been added to the current 29 CFR 778.114(b) to illustrate the principles involved when an employer pays an employee, in addition to a fixed salary, other items such as:
    • a nightshift differential; and
    • a productivity bonus.

The Final Rule also changes the current title of the regulation from “Fixed salary for fluctuating hours” to “Fluctuating Workweek Method of Computing Overtime.”

The Notice of Proposed Rulemaking was available for public comment for 30 days. The Department received approximately 36 comments on the proposal, all of which are available to the public at www.regulations.gov. As of the date of this blog post, the Final Rule has not been added to the Federal Register, however, the Rule is scheduled to go into effect 60 days after the date of that publication.


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’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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