All posts by stu

Americans with Disabilities Act, Contagious disease, Coronavirus, EEOC, Employee Illness, Employee Policies, HR Compliance, Risk Management, Work from Home

EEOC updates FAQs on Screening Employees for COVID-19 and Handling Medical Information

There was an update for employers from the Equal Employment Opportunity Commission (EEOC) on September 8. After public feedback, the EEOC updated several answers to frequently asked questions (FAQs) about how employers should comply with the Americans with Disabilities Act (ADA) during the COVID-19 pandemic. What was updated?

FAQ A6 (COVID-19 testing) still confirms that employers may take screening steps of employees for active virus (still a direct threat). Testing may be done upon return to work, or periodically. Federal disability law does not interfere with an employer following the CDC recommendations, and staying up with CDC updates and revisions. All COVID-19 related testing must be accurate and reliable. Even with testing, employers are still required to follow other infection control practices – handwashing, social distancing, face coverings etc….

FAQ A8 (COVID-19 screening questions) confirms that employers may still ask all employees who are entering the physical workplace if they have COVID-19, have been tested for COVID-19 or have symptoms of COVID-19.  Employees that are teleworking, and not physically in the workplace, would not be asked these questions because there is no direct threat to others.   FAQ A12 (Refusal to answer COVID-19 questions) states an employer may bar an employee from physical presence in the workplace if he/she refuses to have their temperature taken or refuses to answer reasonable questions.

FAQ A9 (Questioning employees by a manager) is a new FAQ.  Can a manager ask a single employee about COVID-19, or do all employees need to be treated exactly the same?  The ADA mandates that if an employer wishes to ask only a particular employee to answer such questions or to have her temperature taken or undergo other screening or testing, the employer must have a reasonable belief based on objective evidence that this person might have the disease.  So, if an employee shares information about possible symptoms, shows symptoms, or discusses close contact with a COVID-19 positive person, this would permit an individualized approach to the employee.  New FAQ A13, allows a manager to ask an absent employee about why they were absent and FAQ A14 allows an employer to inquire about employee travel before an employee develops COVID-19 symptoms.

FAQ A10 (Asking about family members with COVID-19).  The EEOC states that the Genetic Information Nondiscrimination Act (GINA) prohibits employers from asking employees medical questions about family members. GINA, however, does not prohibit an employer from asking employees whether they have had contact with anyone diagnosed with COVID-19 or who may have symptoms associated with the disease.

There are several new FAQs relating to how employers (and managers) must handle employees’ medical information.   FAQ B5 states that ADA confidentiality is not violated when a manager reports employee COVID-19 information to appropriate company officials (but must make every effort to limit the people informed).  The company shall use generic descriptors when contact tracing like “a person in this location” or “someone on the 4th floor” – not the employee’s name.  Employers are not allowed to confirm identity, even in small workplaces where employees probably can figure it out.

A co-worker is allowed to disclose known COVID-19 symptoms of another employee to a manager. FAQ B6.   If an employee is teleworking because of COVID-19, the employer may inform co-workers about the teleworking arrangement, but cannot disclose the reason for the teleworking arrangement. FAQ B7

Business Expenses, Compensation, Coronavirus, Employee Policies, Executive Order, Human Resources, IRS, Payroll

What is Trump’s Employee Payroll Tax Deferral program?

Is your head spinning yet? There have been a dizzying array of federal, state and local financial programs launched to help employers and give economic stimulus to the struggling American economy.  The latest program is the Employee Payroll Tax Deferral program, and it has generated a good number of questions to our office from companies that are trying to figure out the details and how it works.  Here are answers to the most common questions we have received from clients, and the answers (if available).

What are the basics? President Trump announced the payroll tax deferral program in a Presidential Memorandum on August 8, 2020.  The Internal Revenue Service (IRS) recently issued Notice 2020-65 on August 28, providing guidance for the administration of the payroll tax deferral.  So, now your business is trying to figure out whether you want to participate in the program or not.  What factors should you be considering?

Is this program different than the CARES Act payroll tax deferral?  Yes. Under the CARES Act (March 2020), an employer was permitted to defer payment of the employer’s portion of Social Security tax payments. Qualifying small business owners were able to defer 100% of payroll taxes (the 6.2% employer’s portion of the social security taxes).  Deferred deposits must be paid on or before the following dates: 50% of the deferred amount by 12/31/2021; and the remaining amount by 12/31/2022.  The new program is a deferral of the employee’s portion of social security taxes (not employers portion).  IRS Guidance.

Is this program mandatory? No.  The IRS and the Treasury Department indicate that it is the employer’s decision on whether or not to participate in the program and defer the employee portion of Social Security taxes.  Employers are responsible for money that does not get repaid.  In a Wall Street Journal article, ADP is making computer changes so employers can start implementing the tax deferral this month and offer employees a choice of whether to participate.

What payroll taxes are deferred?  If a company elects to participate in it, the payment of the employee portion of any Social Security tax is only deferred (not forgiven): the 6.2% employee’s share of Social Security taxes for workers earning under $104,000 annualized.  So, employees will have higher “take-home” paychecks between September 1 and December 31; but they will have lower “take-home” paycheck between January 1 and April 30, 2021.  If your company decides to participate in the program, communicate how the program works to affected employees so that you can avoid workforce confusion.

Can all employees be included in the payroll tax deferral program?  No. The IRS Notice 2020-65 directs that the employee portion of Social Security taxes on certain wages may be deferred (i.e., wages paid to employees earning less than $4,000 on a bi-weekly basis – or $2,000 weekly – between September 1, 2020, and December 31, 2020, are eligible for deferral).  The $4,000 wage threshold is computed on a pay-period by pay-period basis.  An employee earning more than the threshold, cannot participate.

What other factors should be considered?  If your company chooses to participate in the employee payroll tax deferral program, not all administrative details are answered in the IRS guidance.  Here are some sticky issues without clear guidance:

  • What if an employee leaves employment before the completion of the repayment period?
  • What if an employee makes less money in 2021 than in 2020?
  • How do you handle employee wages that fluctuate above and below $4,000 on a bi-weekly basis?
  • Are employees allowed to opt-out of the program if the employer decides to participate?

The IRS has not provided comprehensive guidance on how to handle these, and other, questions as of yet. However, there is no safe harbor for the arrangement, and the employer is obligated to repay any deferred employee payroll taxes.

For more information, keep visiting the websites for the IRS and Department of Treasury. Also, if you use a payroll service, check with them to see how they are set up to handle this program.

Compensation, Contagious disease, Coronavirus, Department of Labor, Executive Order, Unemployment

$300 Extra Unemployment Benefits coming soon to Floridians

At the end of July, the $600 extended unemployment benefits paid by the CARES Act ended.  After the Congress was deadlocked on a new stimulus bill to help people hurt by the pandemic, President Trump signed an Executive Order on August 8, directing the Federal Emergency Management Agency (FEMA), in partnership with the U.S. Department of Labor, to provide resources to those whose jobs have been impacted by the coronavirus pandemic.  States must apply by September 10, to receive these benefits. According to the GOP Ways and Means Committee, the States have 2 options. (1) States have the option of offering UI claimants an additional $300 per week in unemployment benefits without spending any additional state dollars. (2) States can offer claimants $400 by adding $100 in benefits through their own separate state funds or Coronavirus Relief Funds.  This extended unemployment benefits program is called the Lost Wages Assistance Program.

On August 28, Governor Ron DeSantis announced that the Florida Department of Economic Opportunity (DEO) will submit Florida’s application to participate in the Lost Wages Assistance (LWA) Program. This program, authorized by a memorandum from President Trump, provides additional temporary benefits for individuals who are eligible for Reemployment Assistance for weeks of unemployment ending on or after Aug. 1, 2020. Pending federal approval, this will allow Florida to offer an additional $300 per week to eligible Reemployment Assistance claimants. To be eligible for this benefit, claimants must be currently receiving at least $100 in an approved Reemployment Assistance program weekly benefits and must certify that they are unemployed or partially unemployed due to the disruptions caused by COVID-19. Payments will be retroactive to August 1, 2020 once approved.  FEMA announced this weekend, that Florida’s application was approved.  LWA benefits will end by December 27, 2020, unless the funding is exhausted or replacement legislation is passed.

Floridians that exhausted their normal 13 weeks of state unemployment benefits may apply for the Federal Pandemic Emergency Unemployment Compensation (PEUC) program, offered through the federal CARES Act and administered by DEO.  The PEUC provides up to 13 weeks of benefits to a claimant who has exhausted their regular Reemployment Assistance benefits.  Floridians may apply for PEUC benefits once the balance of their current claim is exhausted.  How to Apply for PEUC.

Compensation, Contagious disease, Coronavirus, Department of Labor, Employee benefits, Employee Policies, FFCRA, HR Compliance, Paid Leave

New DOL Guidance for Paid Leave for School Closures

With schools starting to open in Florida, employers are revisiting the Families First Coronavirus Response Act (“FFCRA”), which provides two weeks of paid sick leave related to COVID-19 and up to twelve weeks of paid leave under the expanded Family and Medical Leave Act (“EFMLA”).  School districts are offering a mixture of online/virtual classes for students (temporary and permanent) and onsite classes for students. This new normal for schools has led to many questions from our clients about whether parents are eligible for the expanded FMLA (EFMLA at 2/3 pay for 10 weeks) to take care of their children due to different schooling arrangements, such as virtual.

Last week, the Department of Labor published new, updated guidance that guides employers about when employees (with school-age children) are entitled to paid benefits under the FFCRA. The guidance (in the form of FAQs 98, 99, and 100) focuses on whether the school is open to in-person attendance, or if all the classes are online and virtual. According to the DOL rules, a school is effectively “closed” to children on days that they cannot attend in-person classes.  To qualify, an employee must need leave to actually care for their child during that time, and only if no other suitable person is available to do so.  Here are four (4) key updates employers need to know:

  • If the child is not permitted to attend school in person and must instead engage in remote learning (FFCRA eligible).
  • If the parent is given a choice between having their child attend in person or participate in a remote learning program, and the employee signed up for remote learning because they were worried about their child getting COVID-19 (not FFCRA eligible).
  • If school is operating on an alternate day (or other hybrid-attendance) basis, and the child has mandatory remote-learning days because the school is effectively “closed” on those days (intermittent FFCRA eligible).
  • If the school year begins under a temporary remote learning program out of concern for COVID-19, but it will evaluate the local circumstances and make a decision about reopening for in-person attendance later (FFCRA eligible when school is closed).

Read the new DOL Guidance on Paid Leave due to Closed Schools and online, virtual classes.  Contact Consultstu if your company has questions about when employees are entitled to leave and how to compensate employees taking leave under the FFCRA.

Compensation, Construction, Drug and Alcohol, Drug Free Workplace, Employee Injury, Employee Misconduct, Employee Policies, Risk Management, Safety, TPD Benefits, Workers Compensation

Asphalt Company Wins Work Comp Case – 5 Tips You Can Use

A Florida asphalt contractor recently benefited from having effective human resource policies.  It avoided paying disability benefits to an injured employee (his skid steer loader was hit by a dump truck) that refused to return to suitable work.  In Florida, an injured employee is entitled to Temporary Partial Disability benefits (hereinafter TPD), when he/she has not reached Maximum Medical Improvement (i.e. still treating) and there is a causal connection between their compensable injury and any subsequent loss of earnings. The test is whether the employee’s capabilities allow him to return to work and perform the job, or whether the injury caused a change in employment status that resulted in a reduction of wages below 80% of the pre-injury average weekly wage.  In short – the employee is not being paid because of their injury, and not because they voluntarily removed themselves from work options.

The asphalt company employee did not respond to the employer’s offer to return to work within their physical restrictions, so TPD benefits were not paid.  This was considered job abandonment.  It is not a valid excuse for refusing available work, to say “I couldn’t perform at 100%” so I did not return to work.  Lost wage benefits are not payable.  As long as the Company can prove that at least one job existed within the injured employee’s capabilities, and the employee refused to perform it, the injured employee is not entitled to compensation. In this case, the employer offered a spotter job and paver machine operator position.

To make things worse, the employee also played games with the post-accident drug test.  At first, he submitted an unusable urine specimen and then refused to bring the needed identification document to the re-scheduled second drug test appointment.  Read the judge’s decision.  Although the employee was not terminated for the drug testing misconduct, his termination was probably justified.  When an injured employee is terminated, TPD benefits would still not be paid if: (1) continued suitable employment existed after the termination; (2) the injured employee continued to refuse suitable employment after termination; and (3) the refusal was not justified.

Lessons Learned: If your company does not want to pay disability benefits to an injured employee who refuses to come back to work and fails to submit a proper post-accident drug test, follow these five (5) tips:

  1. Use a written offer of suitable employment to your injured employees that meet their physical limitations.
  2. Implement a drug-free workplace, and follow your post-accident drug testing procedures and document what happens if an employee fails to complete it.
  3. Implement written policies (in your Handbook) that state an employee is considered to have abandoned their job after “__” days no call/no show and use a 90-day probationary period.
  4. Email or text employees that fail to show up and ask why they are not coming to work.
  5. Don’t ignore an injured employee’s return to work request (even if months later).  Provide a valid termination or refusal to reinstate reason (i.e. job abandonment and failure to take a drug test).
Department of Labor, Employee Handbook, Employee Illness, Employee Policies, Employment Poster, FMLA, Human Resources, Posters

New “Simpler and Easier” FMLA Forms Released

The U.S. Department of Labor (“DOL”) has released new revised versions of its model notice of rights, certification, and designation forms under the federal Family and Medical Leave Act (“FMLA”) (dated June 2020).  The revised forms are noticeably different.  The DOL intended them to be simpler and easier for employees, employers, leave administrators and healthcare providers to understand and use.  Download the new FMLA forms here.  The FMLA poster has not been updated at this time.

Here are highlighted updates:

  • New updated forms include more questions that can be answered by checking response boxes (instead of writing a narrative answer).
  • Additional information regarding the circumstances when follow-up information may be obtained from healthcare providers.
  • Additional information on the substitution of paid leave and concurrent leave usage.
  • Electronic signature features to allow for contactless completion and transmission of completed forms.
  • Reorganized questions that improve the overall organization of information.
  • Forms are longer in length.

Updated forms include:

  1. General Notice of FMLA Rights, which can be given to employees upon hire (poster – did not change).
  2. FMLA Eligibility Notice and FMLA Rights and Responsibilities’ Notice, which can be given to employees to inform them of their eligibility (or ineligibility).
  3. FMLA Designation Notice.
  4. Employee’s serious health condition, form WH-380-E
  5. Family member’s serious health condition, form WH-380-F

Action required: Employers covered by the Family and Medical Leave Act (FMLA), fifty (50) or more employees, should download the revised forms and put them into use with their FMLA process and procedures.

 

Contagious disease, Coronavirus, Employee Illness, Employee Policies, HR Compliance, Human Resources, Safety

CDC Changes Return to Work Guidance for Employers

Last week, the Centers for Diseases Control (CDC) issued important changes to its guidance to employers, including modifying the criteria used to determine when an employee can be allowed back to work after testing positive for COVID-19.  Employers should immediately change its COVID-19 plans and modify its return to work policies accordingly.  Here are the important updates:

  • The “symptom-based” strategy for discontinuing isolation and precautions for individuals with COVID-19 changed. For non-healthcare setting, the CDC now recommends that individuals with COVID-19 remain in home isolation until:
    • At least 10 days* have passed since the onset of symptoms; and
    • At least 24 hours have passed since the resolution of the last fever without the use of fever-reducing medications; and
    • Other symptoms have improved
  • Before the change, the CDC had recommended at least 72 hours pass from the moment the fever resolved without the use of medication. The CDC also removed the word “respiratory” from the requirement to address the expanding list of symptoms associated with COVID-19.
  • Although the CDC still recommends a 10 day period lapse from symptoms onset before returning to work, the CDC added an exception of recommending isolation period for up to 20 days after symptom onset for individuals with severe to critical illness or who are severely immunocompromised.
  • The CDC also de-emphasized the use of the “test-based” strategy. It does not recommend using a test-based strategy except under the following circumstances.
    • To discontinue isolation of individuals who are severely immunocompromised; or
    • To discontinue isolation (or other precautions) earlier than would occur using a symptom-based strategy.
  • The CDC explained its recommendation to rely on symptom-based strategy rather than the testing-based strategy for ending isolation is based on the lack of evidence that clinically recovered individuals with persistently detectable COVID-19 have transmitted the virus to others.
  • In practice, the test-based strategy may be impractical anyway, given the delays in COVID-19 test results.
Construction, Employee Policies, Employment Poster, Human Resources, New Hire, Safety

(new) Florida Contractors HR Set Up Manual

Attention Florida Contractors and Construction companies!  We have worked with Florida contractors and construction firms for almost twenty (20) years and have been a regular presenter at Carmen Ciricillo’s (the Construction Comic) Contractors Educational Services seminars since 2016.   Due to repeated requests from Florida Contractors, we designed and created a Manual of the most critically important HR forms, checklists, posters and documents for small/mid contracting businesses.  This package is ideal for #GeneralContractors, #PoolContractors, #RoofingContractors, #HVACContractors, #SheetMetalContractors, #PlumbingContractors, #ElectricalContractors, #MechanicalContractors, #SiteDevelopment companies, #UtilityContractors, #DrywallContractors, #PaintingContractors, #MasonryContractors, #ConcreteContractors and other Specialty Contractors.

  • All Forms are updated for 2020
  • Complete hiring package
  • Drug and Criminal Screening consent forms
  • Florida Contractor Safety Manual (use to qualify for 2% WC premium discount)
  • Drug Free Workplace Policy
  • Safety Equipment form and Safe Driving
  • OSHA 300 log template (and Recordkeeping guidance)
  • Injury Documentation
  • Employee Accountability forms
  • Employment forms
  • Mandatory workplace posters (federal and Florida, including Spanish versions if available)
  • New Spanish new hire forms

Click here for the one page Florida Contractors HR Set Up package flyer and download the Order Form for the materials.  We will also help you get it set up correctly. Discounted pricing is available through August 31, 2020!

Compensation, Employee Handbook, Employee Injury, Employee Misconduct, Risk Management, Safety, Termination, TPD Benefits, Workers Compensation

Terminating an Employee for Misconduct While They Receive Florida Workers’ Comp

We were recently asked by a client about whether or not an employee on workers’ compensation can be terminated for misconduct. I said yes, but explained that to cut off workers’ compensation benefits the “misconduct” must meet a special definition.  An employee with a workplace injury is expected to follow company policy and cooperate with the reasonable requests of the claims adjustor from the workers’ compensation carrier. However, if an employee receiving temporary partial disability (TPD) benefits commits “misconduct”, Florida Statutes allow the employer to terminate the employee and stop paying TPD benefits. It is an affirmative defense, and the employer has the burden of proving termination by a preponderance of the evidence. This changes the normal Florida “at-will” employment principles.

What is misconduct? FL Statutes, section 440.02(18) states that “misconduct” includes but is not limited to, the following: (a) conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of the employee; or (b) Carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design, or to show an intentional and substantial disregard of an employer’s interests or of the employee’s duties and obligations to the employer.

Further, courts have said that violation of employer policy may constitute misconduct but repeated violations of explicit policies, after several warnings, are usually required.  A single isolated act of negligence does not constitute disqualifying misconduct.  In a recent case, an employee was running an industrial machine used for cutting metal (plasma machine) without using a mandatory safety device (fume extractor).  There were disputed facts about the verbal safety warnings given to the employee prior to being sent home for not using the fume extractor.  The employer had not given written warnings for the prior safety warnings.  Despite safety meetings and verbal warnings about the requirements to use the fume extractor, the employee did not commit “misconduct” because it was the first written warnings.

Lesson learned.  Multiple written warnings may be required. Although an employee’s conduct (for example, a single instance of failing to use the fume extractor while working on the CNC plasma machine) may amount to a good cause for termination of his employment, it did not meet the more stringent standard of “misconduct” used in the Florida workers’ compensation statute. Read JCC decision.  As a result, an injured employee who does not have a series of written warnings (safety, conduct or performance-related) would likely be entitled to continue to receive TPD benefits for the duration of their claim; unless the single incident was extreme and substantial.

Commercial Motor Vehicle Driver, Construction, Contagious disease, Coronavirus, Department of Labor, Employee Illness, FFCRA, General HR Questions, Joint Employer, Temporary Employee

Are Temporary Employees entitled to Paid Sick Days under FFCRA?

Many companies use temporary employees to supplement their workforce.  Employees remain the employee of the temporary staffing agency for a period of time, and the agency controls their overall employment.  During the pandemic, what happens if a temporary employee notifies your company that they have COVID-19 symptoms, or have had close contact with a person that tested positive for COVID-19?  Are they eligible for the paid days under the Families First Coronavirus Response Act (FFCRA)?

In most cases, the answer is no.  After a Tampa based construction client asked me the question this week, I located the FFCRA Frequently Asked Question (FAQ) #90 provides the answer.  If the temporary staffing agency has more than 500 employees, it is is not required to provide employees with paid sick leave or expanded family and medical leave.  The FFCRA does not cover companies with more than 500 employees.  However, if the business where the temp employee is working employs less than 500 employees, it is covered by the FFCRA and must provide those benefits.

Employers using temp employees are only required to offer FFCRA benefits if it is a joint employer.  If the second business directly or indirectly exercises significant control over the terms and conditions of the temporary work, then it is a joint employer and must provide FFCRA paid benefits.  If the second business does not directly or indirectly exercise such control, then it is not an employer and is not required to provide paid leave to a temp.  To determine whether the second employer exercises such control, the Department of Labor would consider whether it exercises 4 factors: (1) the power to hire or fire you, (2) supervises and controls your schedule or conditions of employment, (3) determines your rate and method of pay, and (4) maintains your employment records. The weight given to each factor depends on how it does or does not suggest control in a particular case.  So, in most cases, the temporary staffing agency will maintain the employment file, decide pay rate and methods of pay, supervise the overall delivery of services and has the ability to hire, fire and reassign temp employees.  Therefore, the secondary employer is not a joint employer and not required to pay FFCRA paid sick leave benefits (and would not be able to be reimbursed by the federal government for any benefits paid to the temp employee).

Although not covered by the FFCRA paid leave, both the temporary staffing agency and the second business are prohibited from discharging, disciplining, or discriminating against a person for taking such leave, even though it is not required to provide you with paid sick leave.

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