All posts by stu

New COBRA Subsidies in the American Rescue Plan (ARPA)

President Biden has signed the massive American Rescue Plan Act of 2021 (ARPA), which includes a federally-financed COBRA subsidy that is available for up to six months for eligible individuals. The COBRA subsidy will be available beginning on April 1, 2021 and end on September 30, 2021. Further guidance will be coming from the DOL and IRS, but is some basic information.

Who is eligible? Individuals (who are qualified beneficiaries) who were involuntarily terminated from employment or had a reduction of hours. So, employees that quit, or voluntarily left employment are not eligible for the subsidy. Assistance eligible individuals (AEIs) include employees plus affected spouses and children.

  • Individuals previously eligible for COBRA coverage, but who did not elect COBRA and have coverage that would have extended into the subsidy period.
  • Individuals previously eligible for COBRA coverage, elected, but dropped coverage for non-payment, and have coverage that would have extended into the subsidy period.
  • Individuals who are or become eligible during the subsidy period.

What coverage is eligible for the Subsidy? The subsidy will include all health coverage for which COBRA must generally be provided with the exception of health flexible spending accounts (FSA). Subsidized coverage will be for dental and vision coverage, as well as medical coverage. And, the subsidy will also available for continuation coverage required by State “mini-COBRA” laws.

What is the subsidy period? The COBRA subsidy begins April 1 and ends September 30, 2021. An employee’s eligibility period for the subsidy may end prior to September 1, when their 18 month maximum coverage period ends based on their original qualifying event (for instance, employee was laid off February 1, 2020, the 18 months of COBRA would end July 31, 2021 – so subsidy would end July 31, 2021).

New Election Period Starts April 1, 2021. Although employers do not have a Model Notice for the Extended Election Period from the DOL, an Assistance Eligible Individual (AEI) must be given a new 60 day election period for COBRA, starting April 1, 2021. SO, individuals that did not elect COBRA, or dropped COBRA get a new chance to enroll in COBRA and get the subsidies.

How much is the subsidy? Depends. There will be some rules about the enrollment options available to the AEI, and the group health plan will cover the cost, which will be reimbursed (including the administrative fee) by the Federal government via a payroll tax credit. So, the subsidy amount will vary by employer, based on the cost of coverage.

Regularly check the DOL – COBRA webpage for news and updated forms.

Fake COVID Vaccine cards – really?

Apparently, there is a market for fake vaccine cards online and sellers are charging hundreds of dollars. Really…? Posts have started to appear on Twitter, Instagram, and eBay, and other e-commerce sites, for fake vaccine cards, even though the blank CDC cards are readily available on the internet, including various public health sites. There are also an unlimited number of online images showing what a completed CDC Vaccination card should look like. So, there is nothing to stop a person from making their own vaccine card and showing it off as official and authentic.

Did you know that using a fake COVID vaccine card with the CDC logo is illegal? Today, the Federal Bureau of Investigations (FBI) released a special alert stating “if you did not receive the vaccine, do not buy fake vaccine cards, do not make your own vaccine cards, and do not fill-in blank vaccination record cards with false information.” The FBI further warns that “by misrepresenting yourself as vaccinated when entering schools, mass transit, workplaces, gyms, or places of worship, you put yourself and others around you at risk of contracting COVID-19.”

Further, the FBI advised that the unauthorized use of an official government agency’s seal (such as HHS or the Centers for Disease Control and Prevention (CDC)) is a crime, and may be punishable under Title 18 United States Code, Section 1017, and other applicable laws. The Federal Trade Commission also advised against posting a photo of your vaccination card on social media because it discloses personal information, and you could be inviting identity theft.

Read more about COVID-19 vaccines from the CDC and the Florida Department of Health.

How to Fix I9s Completed for Remote Employees Because of COVID-19

Since March 20, 2020, the Department of Homeland Security (DHS) has given employers flexibility when completing I9 forms for employees that are working remotely because of COVID-19 safety precautions. The physical presence requirements associated with the Form I9 (it is required to physically review the original employee identity and employment authorization documents) were relaxed to accommodate employers that were not physically meeting with new hires due to COVID-19. Employers were allowed to inspect the Section 2 documents remotely (such as video call, fax and emailed copies) within 3 business days and retain the copies of the documents. Employers were advised to enter “COVID-19” as the reason for the physical inspection delay in Section 2 “Additional Information” field. Starting April 1, 2021, the requirement to physically inspect employee’s documents to complete the I9 Form only applies to those employees who physically report to work at a company location on any regular, consistent and predictable basis. Read March 31, 2021 update.

If employees hired on or after April 1, 2021, work exclusively in a remote setting due to COVID-19-related precautions, they are temporarily exempt from the physical inspection requirements associated with the Employment Eligibility Verification (Form I-9) until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier.

How to fix I9s for remote employees? In person review of identity and employment authorization documents that was postponed for remote employees must be corrected, once onsite operations restart, or the DHS flexibility policy ends. Follow these 3 steps:

  1. Once normal operations resume, all employees who were onboarded using remote verification must report to their employer within three business days for in-person verification.
  2. Maintain written documentation of the company remote onboarding and telework policy, and keep a copy with the I9s.
  3. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 additional information field on the Form I-9.

Possible Solution for Remote Employees: Employers may designate an authorized representative to act on their behalf to complete Section 2 (and have in person review of the I9 documents). An authorized representative can be any person the employer designates to complete and sign Form I-9 on their behalf. An employer is still responsible for violations connected to the actions of its authorized representative. 

Did your Publix I9 Immigration Certification Letter expire?

Recently, a Florida Publix vendor contacted our office in need of an updated annual I-9 Immigration Certification Letter. The Publix Contract Management team had notified the company that its annual certification letter had expired and if it was not updated, the company was at risk for having its services being halted until received. Consultstu responded quickly, completed the I9 Review and submitted the company’s updated Certification Letter to the Publix Contract Management Team.

We offer a completely remote Immigration and I9 review process that gives clients thorough and accurate feedback about their Form I-9s, supporting documents and E-verify documentation.

Here are some tips for improving your I9 compliance:

  1. A completed Form I9 is required for all employees. The employees must complete and sign by the end of their first day of work, and the company representative must complete and sign by the 3rd day of employment.
  2. Blank sections should be noted with “n/a”
  3. No I9 Form is needed for any employee hired before November 6, 1986.
  4. The translator box should be checked either yes or no.
  5. Errors can be corrected by lining out the incorrect information and adding the new information, then initial and date the change.
  6. Don’t forget to add the employee’s name and immigration status on the top of page 2.
  7. Florida law now requires that employers keep copies of the employee work authorization documents.
  8. If you rehire an employee within three years of the date of the initial execution of his or her previous I-9 form, you can complete a new I9 form, or you can rely on the previously completed I9 form (if it shows continued eligibility), and use Section 3 with the date of rehire.
  9. Do not update Driver’s Licenses and Permanent Resident cards that expire.
  10. If the I9 retention requirement is confusing, use the simple retention worksheet found in the Handbook for Employers M-274.

Contact Consultstu at (727) 350-0370 to schedule your annual (new or updated) Publix Immigration Review and I-9 Audit and receive your certification letter from a qualified third party.

Florida’s New E-Verify Law

On January 1, 2021, Florida joined a growing number of states that mandate some use of E-Verify for certain employers. Last year, Governor Ron DeSantis signed legislation that requires all public employers, including local school districts, public universities, and colleges, and state and local agencies, as well as their private contractors, to use E-Verify. The new law took effect on January 1, 2021. Read the new law.

What is E-Verify?
E-Verify, a federal electronic database, is used by employers to confirm the documentation provided by new hires and to establish lawful employment eligibility are in fact valid (by checking against federal databases).

What Florida employers are required to use E-Verify starting January 1, 2021?

  1. Every Florida public employer, including local school districts, public universities, and colleges, and state and local agencies, must enroll in and use the E-Verify system to confirm the eligibility of all new employees after 1.1.21.
  2. Contractors and subcontractors that have contracts with public employers. Public contracts now require an E-Verify certificate. Any subcontractor working on a public contract must provide the contractor with an affidavit (which must be retained by the contractor during the duration of the contract) stating that the subcontractor does not employ, contract with, or subcontract with unauthorized aliens.

Private employers are not required to use the E-Verify system unless they have a contract with a public employer, or they apply for taxpayer-funded incentives through the state Department of Economic Opportunity.

Special Note: The new Florida law reaffirms that all employers must still complete and maintain “I-9 Employment Eligibility Verification forms for all hires. Any private employer who does not use E-Verify must now maintain copies of the employee’s employment eligibility documents used to complete the Form I-9 for three years. This is optional under federal law.

What happens if an Employer Violates the new rules?

Failure to comply with the law can result in suspension or permanent termination of your Florida business license(s).

SSA “no-match” Letters Return in 2021; 4 Steps to Respond

After taking a pandemic related break in 2020, the Social Security Administration (SSA) is resuming the practice of sending “no match” letters to employers, according to experts. A “no match” letter is a written notification by the SSA to an employer that there is a discrepancy between a workers’ social security number (used on W2 form) and government records.

If your company receives a “no match” letter, read it carefully. It does not mean that the employee is not authorized to work in the United States, and the letter is not definitive proof that the employee needs to be terminated or suspended right away. Mismatches can result from a variety of reasons, including typos, name changes, or identify theft issues.

However, experts recommend that companies take action in response to a “no match” letter. The letter requests that the company takes the following action: (1) review the discrepancies through the designated SSA online portal; (2) inform the employee about the discrepancy; and (3) submit a corrected W-2C, with the corrected information, within 60 days. The letter also says that if the discrepancy is not addressed, an employer can face serious immigration compliance issues.

Here are the 4 steps we recommend for employers to take:

  1. Register on the SSA online portal to identify the workers’ with the discrepancies. Double-check employee hiring documents to verify that the payroll system is using correct information.
  2. Inform affected employees about the “no match” letter (letter template is available for Consultstu clients) in writing. Advise the employee to contact the SSA to review the situation and correct their records.
  3. Stay in contact with the employee and review documentation submitted to correct the mismatch.
  4. Submit corrected W2s, as needed. Determine if employment action is needed if the employee does nothing and takes no action.

In addition, depending on the situation, employers may choose to conduct a self-audit of its I9 forms. Here is guidance for employers conducting self-audits of I9 forms.

Get 2021 Started Right: 10 HR Action Items

Now that we have closed out 2020, and started 2021, its time for Human Resources/Payroll to take some important year-end actions to ensure a smooth transition into 2021. Consultstu has created a 10 point HR Checklist to ensure your Company is up to date with fast-changing federal/state rules and regulations.

  1. Update your Applicant New Hire packet with 2021 forms.
    • Replace W4 with 2021 W4 version (review the new 2021 form)
    • Ensure current Form I9 is being used (shows expiration date of 2022)
    • If used, update the DOL Healthcare Exchange form (mandated by ACA) with current group health insurance renewal information (contribution cost and eligibility) on page 2 of the form.
  2. Post the 2021 Florida Minimum Wage poster (effective 1/1/2021) (watch for news about the Florida Constitutional Amendment raising the minimum wage to $15 by 2026).
  3. Decide if the company will voluntarily extend the FFCRA COVID related paid benefits through March 31, 2021.  If yes, keep the FFCRA poster up and process eligible employees (and submit for tax credits); otherwise, take down FFCRA poster.
  4. Update Hiring process – After 1/1/21, keep copies of documents used for Form I9 completion, or sign up to use E-Verify (new FL law change)
  5. Handbook review and update
    • Employee count increase/decrease? Policy changes?
    • Update COVID safety guidelines to include CDC updates (i.e symptom-based return to work and reduced quarantine period.
  6. Review and update 2021 observed holiday schedule and post for employees.
  7. (If applicable) Add any final OSHA 300 log cases to the 2020 form, and prepare the OSHA 300A Summary for posting on February 1 through April 30.  Companies in higher hazard industries will also report summary case data via OSHA’s ITA website in March 2021.
  8. Construction companies should request new certificates of insurance forms from current subcontractors.  Sign up for the Florida Construction Policy tracker database (click new registration).
  9. (Voluntary) – send a copy of 2021 W4 to existing employees to see if they want to make any changes to federal tax withholding.
  10. Review I9 binder/folder and purge old I9s (retention rule is a minimum of 3 years of 1 year after termination, whatever is longer).

If you have questions or want help getting up to date, just give us a call at (727) 350-0370.

Mandatory Paid COVID leave (FFCRA) Expires 12/31/20, Now Voluntary

On January 1, 2021, employers are no longer mandated to provide expanded paid COVID sick days and emergency family leave benefits that was put into place by the Family First Coronavirus Response Act (FFCRA). Covered employers (private employers with under 500 employees and public employers) have the option to voluntarily permit employees to use any unused FFCRA leave through March 31, 2021, and are still able to claim a corresponding payroll tax credit.

In March 2020, the FFCRA created the emergency paid sick leave (up to 80 hours) and the emergency family and medical leave expansion (partially paid leave for parents for school and child care closings). These leaves officially expire on December 31, 2020; and the new COVID relief bill passed by Congress did not add any new paid benefits, but did allow covered employers to voluntarily extend the use of the FFCRA benefits through March 31, 2021. Covered employers have these 2 options:

Option 1: Do not provide these voluntary benefits and take down the old FFCRA poster. Handle employee requests for leave and paid time off under standard company policies.

Option 2: Voluntarily provide extended FFCRA leave and claim a corresponding payroll tax credit for any leave taken through March 31, 2021. Keep the FFCRA poster up and communicate this to employees. If an employee has already exhausted their FFCRA sick leave (and/or 12 weeks of EFMLA), they are not eligible to receive any additional paid sick leave. However, if they still have some paid time still available, the employer can pay it (keeping appropriate documentation) and seek a payroll tax credit for the original allotment of FFCRA leave. If your company is covered by FMLA, and your 12 month FMLA leave period resets on January 1st (not look back or look forward), then an employee may be entitled to additional paid FMLA (final 10 weeks of the 12 week period) – but we are waiting for additional guidance from the Department of Labor (DOL) and the Internal Revenue Service (IRS) on this topic. More to read.

Can Employers Require COVID-19 Vaccinations for Employees?

On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) issued guidance that allows for employer-mandated vaccines. According to the EEOC, employers may implement a mandatory vaccination policy because vaccines are not “medical examinations” under the Americans with Disabilities Act (ADA) – but a third-party administrator should administer the vaccine so that medical information gathered by the vaccine administrator – health screening questionnaire, etc.. – is not gathered by the employer. The EEOC says that “if a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination.” So, during the pandemic, employers can implement COVID-19 vaccine policies and require employees to be vaccinated as a condition to continued employment or, at the very least, as a condition to returning to the physical workplace. Mandatory vaccinations also trigger additional legal obligations.

Here are six (6) things to know about the EEOC’s Vaccine guidance.

  1. The EEOC recommends that employers should make COVID-19 vaccinations voluntary.
  2. The EEOC recommends that employers use third-party administrators (such as a medical clinic or pharmacy) to ask the medical screening questions before administering the COVID-19 vaccine (not the employer).  Employers considering implementing this policy must follow the restrictions and limits contained in the Genetic Information Nondiscrimination Act (GINA).  Under GINA, any pre-screening medical questionnaires completed by an employee to be vaccinated should be gathered by third parties (medical providers) because the disclosure of this information to an employer may trigger the ADA’s prohibition against asking disability related questions of employees.  Employers may ask disability related questions, but it needs to be job related and consistent with a business necessity.  Even if the pandemic creates a business necessity to require mandatory vaccines, this information creates future liability because knowledge of employee medical conditions can become an alleged motive in future employment actions.
  3. Proof of vaccinated status is not a medical examination or a disability-related inquiry.
  4. Employers should not ask an employee why they cannot receive the vaccine.
  5. Without proof of vaccinated status, an employer may prohibit an employee from returning to work if the company has a reasonable belief that the employee’s unvaccinated status poses a significant risk of substantial harm to the health or safety of the individual or others (i.e. direct threat).  Even in those cases, an employer is still required to reasonably accommodate an employee that cannot, or will not, be vaccinated.  The reasonable accommodation obligation stems from both the ADA (for employees that can’t get the vaccine due to medical issues) and Title VII of the Civil Rights Act of 1964 (for employees that refuse to take the vaccine for religious reasons).
  6. To determine a direct threat, employers must conduct an individualized assessment of four factors: (1) duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) imminence of the potential harm.  If an unvaccinated employee poses a direct threat, no adverse action can be taken against the employee until they have been offered a reasonable accommodation, or the accommodation causes undue hardship to the employer.  If a direct threat cannot be reduced to an acceptable level, an unvaccinated employee can be prevented from returning to the workplace.   This process shall be an individualized, interactive dialogue.

Florida announces $8.65 Minimum Wage for 2021

On October 15, 2020, Florida announced the new minimum wage rate of $8.65 per hour for 2021. Florida’s minimum wage rate is adjusted annually to reflect changes in the cost of living. The minimum hourly rate for tipped employees in Florida will be $5.63 per hour in 2021.

Florida law requires the Florida Department of Economic Opportunity (DEO) to calculate a minimum wage rate each year. The annual calculation is based on the percentage increase in the federal Consumer Price Index for Urban Wage Earners and Clerical Workers in the South Region for the 12-month period prior to September 1, 2020.

Employers are required to conspicuously display the 2021 minimum wage poster in a location where employees can easily see it.  Download the poster (English, Spanish and Creole versions available) for FREE from the DEO webpage.

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