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OSHA Form 300A Posting Starts February 1 and Electronic Submission is due by March 2

Covered employers (having more than 10 employees at any point in 2022) are required to post the Occupational Safety and Health Administration (OSHA) Form 300A (Summary of Injuries) from February 1 through April 30 unless their industry qualifies as an exempt low-risk industry. The employee count is based on the number of employees in the entire company. Employers are not required to create OSHA injury and illness records for any establishment classified in the following North American Industry Classification System (NAICS).

All covered employers are required to post Form 300A even if they didn’t have any recordable incidents in 2022. Recordable incidents are required to be maintained on the OSHA Form 300 Log of Work-Related Injuries and Illnesses. OSHA Form 300A must be signed (and certified) by a company executive and posted in a conspicuous location for employees and where other important notices are customarily posted. OSHA records must be maintained at the worksite for at least five years.

Electronic Reporting: Employers must submit their 2022 Form 300A data to OSHA if they have 250 or more employees or have 20–249 employees and are in certain high-risk industries. Employers must send this data electronically, using OSHA’s online Injury Tracking Application (ITA). The deadline to submit the report is March 2, 2023.

On March 30, 2022, OSHA published a new rule to improve the Tracking of Workplace Injuries and Illnesses that would require establishments with 20 or more employees, in certain high-hazard industries to continue to electronically submit Form 300A Annual Summary information once a year to OSHA. Establishments with 100 or more employees in the highest-hazard industries to submit Form 300 Log and Form 301 Incident Report information once a year to OSHA. And, establishments with 250 or more employees, not in designated high-hazard industries, would no longer be required to electronically submit recordkeeping information to OSHA.

Update: The OSHA Injury Tracking Application (ITA) transitioned its login procedure to the public’s one account access to government applications, Login.gov. All current and new account holders must connect their ITA account to a Login.gov account with the same email address to access the application for the 2023 collection of Calendar Year 2022 Form 300A data.

Random Drug Testing services for Florida Drug-Free Workplaces

Random drug testing will deter drug use, which helps stop accidents and improve safety. The Florida drug-free workplace statute allows but does not require, random drug testing of employees. A random drug test is not a test based on reasonable suspicion of employee drug use, or a targeted test. Statistically random testing is truly “random” and the names of employees selected for testing were selected from a pool or list using a pre-determined rate. Each person on the list, or in the pool, has an equal chance of being selected (and could be re-selected during the year). The definition of “random” is ”made, done, or chosen without method or conscious decision.” Names cannot be selected based on employer favoritism or specific cause.

Setting up a random drug testing policy requires adding language to your Florida drug-free workplace policy. Specifically, identifying how many employees will be tested, how often and a description of the random name selection. Here is some sample language to consider: “The company will randomly drug test employees on a quarterly basis starting [date]. Employees are selected for random testing using a random number generator computer program. Each [quarter or month], on a day selected at random using the program, the HR department will pull a random selection of _____ employee names. Once the names are selected, HR will immediately notify the employees and testing must be completed on the same workday. An employee that does not complete the mandated drug test, without a legitimate reason, will be subject to discipline, up to and including immediate discharge.”

A random number generator program should be used to ensure that the employees selected for drug testing are truly random and this protects the company from allegations of discrimination and bias. Random number software uses an algorithm for generating a sequence of numbers whose properties approximate the properties of sequences of random numbers. Consultstu can serve as a third party to help you revise your drug testing policy and pull the names for your random testing. We can also generate lab authorizations for drug testing. Our computer software will generate a random date (for the month or quarter) for your drug testing and random names for testing. Call us today for more information about random drug testing services.

Checklist of HR and Payroll Updates for 2023

Happy new year! It’s now time to review and update your company’s HR and payroll practices and documents for 2023. As we close out 2022, and begin 2023, it’s time for human resources and payroll to take some important January actions. Here is Consultstu’s 10 point HR checklist to help you get up to date with needed changes and fast-changing federal and Florida rules and regulations. Here are the 2023 HR & payroll updates.

  1. Update the new hire packet with 2023 documents. Replace your W4 with the 2023 version. Optional – send the new W4 to existing employees to see if they would like to make changes for 2023.
  2. Ensure you are using the right Form I-9 (expiration date for 2022, and even though it expired, the USCIS has authorized its use until it is replaced). A new form is coming in early/mid 2023.
  3. Go through the terminated employee I9s, and purge old I9 forms. The retention rule is a minimum of 3 years or 1 year after termination, whichever is longer.
  4. If group insurance plans renew on January 1, update the Heathcare Exchange form (mandated by ACA) with current group health insurance renewal information (contribution cost and eligibility) and add to page 2
  5. Check your state and federal workplace posters to ensure the latest versions are posted. See the Florida Department of Economic Opportunity webpage for free versions.
  6. Review, update and post the updated observed holiday schedule for 2023, and add to the Employee Handbook.
  7. Review recruiting and retention strategies for 2023 to stay current with the labor market conditions. Check the trending labor rates for key positions and obtain current compensation data to validate existing salary bands.
  8. Review the Employee Handbook for updates. Did your employee count increase or decrease? Policy changes? Were there any new issues that need to be addressed? Publish your updated Handbook and get employees to sign off.
  9. Check minimum wage rates (Florida MW rate increased on September 30, 2022) and minimum salary level under federal law to maintain exemption from overtime. Federal wage and hour plans to change the minimum salary level for exempt employees, so be prepared in 2023. Some states have set their own minimum salary levels, that are greater than the federal law.
  10. Travel policy update and 2023 mileage change. If your company provides mileage reimbursement, review the new rates effective January 1st, 2023. The rate increases to 65.5 cents per mile.

Here is one last recommendation. To prepare accurate W2s and 1099 forms at the end of January, ask employees to update their addresses, phone numbers and personal email. Depending on your payroll system, obtain employee consent to electronic delivery of their W2 forms. IRS Regulations require an employer to receive affirmative consent from its employees in order to deliver Forms W2 electronically. 

Salary Reduction for an Exempt Employee: What are the rules?

At Consultstu, this is probably the most common question we receive from employers. The federal Department of Labor (and the Fair Labor Standards Act) states that exempt employees must be paid a fixed salary that cannot be reduced based on the quality and quantity of the employee’s work. To qualify for an exemption, employees must be paid not less than $684 per week (DOL is expected to raise this amount in 2023) on a salary basis. There are special salary rules associated with outside sales employees, teachers and employees practicing law and medicine. Computer professionals have a specific rule that allows them to be paid a salary, or hourly, as long as it is at least $27.63 per hour.

Getting paid on a salaried basis (Regulation 541.602) means an employee receives a pre-determined amount of compensation each pay period on a weekly, or less frequent, basis. There is a list of exceptions to the rule that an exempt employee must receive their full salary for any week in which the employee performs any work, regardless of the number of days or hours worked. Also, keep in mind that an exempt employee does not need to be paid for any workweek in which they perform no work. If an employer makes a reduction from an exempt employee’s salary because of operating requirements of the business, the employee is not considered to be paid on a salary basis (and overtime would need to be paid).

According to the Department of Labor, here is the list of permissible reductions: (1) less than a full week of work in the first and last week of employment; (2) full day off for personal reasons; (3) full day off for FMLA absence; (4) full day off for sickness or disability – if the employer has a bona fide paid leave plan; (5) full day disciplinary suspension for violating workplace conduct rules; (6) full day suspension for a major safety rule violation.

No pay deduction from a salaried employee is allowed for a partial day missed (a few hours off), but an employer can require a salaried employee to use available PTO to cover a partial absence. In addition, the following are not permissible deductions: (1) partial and full days for sickness or illness if the employer does not have a bona fide leave plan; (2) partial day suspensions; (3) holidays and other days the employer is closed (weather, emergency, lack of work); (4) partial or full days off for poor performance or poor quality of work; (5) jury duty or witness duty or temporary military duty (unless the absence is for a full week) – but salary can be offset for jury duty fees or military pay received). Read the DOL Fact Sheet #17G Salary Basis Requirement and the Part 541 Exemptions.

Can an employee clean the office after hours for a flat fee, or is it overtime?

This question gets asked several times a year. The scenario goes like this … a medical practice gets poor cleaning services from its vendor so an employee asks to clean the office, after hours, for a flat fee. Seems like a win-win solution. The employer receives a clean office and the employee puts some extra money in their pocket. What are the issues for the employer to consider?

The first option is employment. If the medical assistant is working 40 hours for the employer, and the cleaning work takes 6 hours per week, then the additional hours would need to be added to the 40 hours worked in her primary assignment, and overtime paid for hours in excess of 40. The key element is that the employee is rendering services to the same employer, and it does not matter that the employee is performing different work. The employer could pay the employee at a different rate of pay for the cleaning work, but the hours worked would still count toward overtime.

In calculating the overtime rate for an employee working two or more different jobs for the same employer, the Faur Labor Standards Act (FLSA) requires the use of a weighted average. Assume the medical assistant earns $18 per hour and receives $15 an hour for the after-hours, and weekend cleaning time. If the employee worked 40 hours in planning ($16 x 40= $720 and 6 hours as a cleaner ($15 x 6 = $90), the employee’s total straight-time earnings for the week is $810. The weighted average hourly rate is determined by dividing the total earnings by the total hours ($810/46 = $17.61), resulting in a half-time rate of $8.81. So, in addition to the $15 per hour for cleaning, the employee would be due an additional $8.81 for the 6 overtime hours. Her total pay is $810 plus $52.86 for overtime, for a total of $862.86. Read DOL Opinion Letter on this topic.

The second option is an independent contractor. If the employee actually has a side cleaning business, with a business EIN and other customers, then the practice could hire her cleaning company to perform the cleaning for a flat fee. The businesses should sign a service contract and maintain a business relationship. To avoid overtime, the employee must have her own independent business.

New 2022 EEO “Know Your Rights” Poster Free to Download

On October 20, 2022, the U.S. Equal Employment Opportunity Commission (EEOC) quietly released a new final “Know Your Rights: Workplace Discrimination is Illegal” poster. Click here. The poster summarizes the EEO laws and explains how employees or applicants can file a complaint if they believe that they have experienced discrimination. The new poster replaces and supersedes the older version of the poster that was titled “EEO is the Law” and had last been updated in November 2009. The poster is available in English and Spanish.

The law requires an employer to post this notice describing the Federal laws prohibiting job discrimination based on race, color, sex (including pregnancy and related conditions, sexual orientation, or gender identity), national origin, religion, age (40 and older), equal pay, disability or genetic information (including family medical history or genetic tests or services), and retaliation for filing a charge, reasonably opposing discrimination, or participating in a discrimination lawsuit, investigation, or proceeding.

The poster should be placed in a conspicuous location in the workplace where notices to applicants and employees are customarily posted. In addition to physically posting, covered employers are encouraged to post the notice digitally on their websites in a conspicuous location. In most cases, electronic posting supplements the physical posting requirement. In some situations (for example, for employers without a physical location or for employees who telework or work remotely and do not visit the employer’s workplace on a regular basis), it may be the only posting.

How do Employers Make a “Direct Threat” Determination

The Americans with Disabilities Act (ADA) is 30 years old and employers are familiar with its general requirement to provide reasonable accommodation to qualified individuals (applicants and employees) with a physical or mental impairment that substantially limits a major life activity. A reasonable accommodation is any change or adjustment to a job or work environment that permits a qualified applicant or employee with a disability to participate in the job application process, perform the essential functions of a job, or enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities. Read more.

If an applicant or employee with a disability poses a direct threat to the health or safety of himself or others, an employer must consider whether the risk can be eliminated or reduced to an acceptable level with reasonable accommodation. A direct threat means a significant risk of substantial harm. The harm cannot be speculative, or remote risk. An employer must review the facts of the situation to determine if the individual poses a direct threat to the health and safety of himself or others, that cannot be eliminated (or reduced to an acceptable level) with reasonable accommodation. How does this work in the real world?

U.S. Steel confronted this situation when it gave a conditional offer of employment to an applicant who would be driving a forklift, work with power tools and around hazardous chemicals. The fitness-for-duty exam doctor learned that the applicant had stopped taking his anti-seizure medication against his physician’s advice. The company revoked the offer of employment because he would pose a direct threat to himself and others in the workplace. In the lawsuit, the court concluded that the employer must conduct an individualized assessment of the person’s ability to safely perform the essential job functions. There are 4 key factors in the analysis:(1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.

U.S. Steel reviewed the following information: applicable DOT regulations, a completed health inventory form, a physical examination, and medical records and neurologist’s notes. U.S. Steel concluded that the employee’s seizures were not well controlled, and his condition was indefinite (not temporary). The nature and severity of the harm could be disastrous since his seizures caused loss of consciousness. His seizures were uncontrolled and of unlimited duration. It was imminent harm, even though he had only 4 seizures in his life, 2 episodes happened since he stopped taking his medication. This showed U.S. Steel that he was at higher risk of having another seizure.

Here are the lessons from the U.S. Steel case. First, a medical examination along with the consideration of relevant medical records is crucial to weigh the 4 factors. Second, employers should document their steps and process used to evaluate the employee, limitations/abilities, job requirements, and the probability of harm. Lastly, maintain open communication with the affected person about the company’s process and its decision, and allow for their input and consideration related to any reasonable accommodations. Read the case.

Florida Minimum Wage will increase to $11.00 per hour on September 30, 2022

Effective September 30, 2022, the Florida minimum wage will increase from $10.00 to $11.00 per hour. Additionally, the minimum wage for tipped employees will increase by $1.00 to at least $7.98 per hour, in addition to tips. The next minimum wage increase is set for September 30, 2023.

In 2020, Florida voters approved a state constitutional amendment to gradually increase the state’s minimum wage each year until reaching $15.00 per hour on September 30, 2026.

Download these new posters for FREE from the Florida Department of Economic Opportunity – English version and Spanish version.

Conciliation Agreements: What are the EEOC Requirements?

The Equal Employment Opportunity Commission (EEOC) investigates charges of unlawful discrimination and conducts an investigation into the allegations and the employer’s response. After assessing the evidence, the EEOC sometimes issues a Letter of Determination that there is reasonable cause to believe that a company discriminated against the charging party (employee) in violation of Title VII. In the Letter of Determination, the EEOC will attempt to resolve the case through a written conciliation agreement. The Conciliation Agreement is a settlement of the case and contains a list of required actions that the employer must take to eliminate the alleged unlawful practices. An employer is typically given seven (7) days to inform the EEOC if it wishes to participate in conciliation. We examined a recently proposed Conciliation Agreement and here are the EEOC requirements.

Can an employer decline conciliation? Yes, if the employer declines conciliation or the EEOC investigator is unable to secure a settlement acceptable to the Commission, the EEOC will advise the complaining party and employer about the court enforcement alternative and will issue a “Right to Sue” letter to the employee.

Here are the EEOC requirements from the Conciliation Agreement:

  • Five year agreement.
  • Dollar amount for settlement.
  • Retain a subject matter expert to conduct yearly training to employees about Title VII (live and in person) – for 5 years
  • Retain subject matter expert to conduct yearly training to management and HR employees (live and in person) – for 5 years. Specific recommendations for training content.
  • Implement an Anti-Discrimination policy that contains specific content including language about: (1) clear complaint process, (2) identifies individuals to receive complaints, (3) prompt, impartial investigations, (4) examples of prohibited conduct, (5) no tolerance for prohibited conduct, (6) protection from retaliation, (7) confidentiality protection, (8) appropriate disciplinary action for violations, (9) managers required to escalate complaints of harassment, and (10) retaliation that is substantiated will result in discipline.
  • Adopt a policy to hold supervisors accountable for compliance with EEOC policies and procedures.
  • Maintain recordkeeping procedure for tracking discrimination, harassment and retaliation complaints.
  • Submit an annual report to the EEOC regarding various actions under the Conciliation Agreement, including information about complaints, investigations and company responses.
  • Display the EEOC poster in a location accessible to employees and applicants.

in 2021, there were only 111 successful conciliation agreements (0.5% of cases), down from 377 (1% of cases). The Trump Administration had proposed new conciliation regulations in 2021, designed to make conciliation more transparent and require the EEOC to disclose facts known to the EEOC. Before it took effect, President Biden signed a joint resolution eliminating the new rules and declared that the “onerous and rigid new procedures,” would increase the risk of retaliation against workers who file complaints or participate in discrimination investigation.

CDC Streamlines COVID-19 Guidelines

In early August, the CDC updated and streamlined its guidelines for COVID-19 to help people better understand risk and how to protect themselves.  As compared to earlier in the pandemic, there is significantly less risk of severe illness and death thanks to the resources available to us now.

In support of this update, the streamlined guidelines put forward by the CDC include promoting the importance of up-to-date vaccination.  The new updated guidance equalizes treatment for those vaccinated, and not vaccinated, when there is an exposure to someone with COVID-19.  Regardless of vaccination status, instead of quarantining after exposure to COVID-19, CDC now recommends wearing a mask for 10 days and testing on day 5 after exposure to COVID-19.

CDC still recommends isolation away from others after testing positive for COVID-19, including a 5-day isolation period after first testing positive for the virus and an end to isolation if fever-free for 24-hours. If an individual has moderate or severe illness, it is recommended that isolation be extended through day 10 and it may be wise to contact your health care provider.

In the coming weeks, new updates will be added for travel, healthcare settings, and other high-transmission settings.  Click here for the CDC media release source.

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