All posts by stu

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.

Americans with Disabilities Act, Contagious disease, Coronavirus, Disabilities, EEOC, Employee Illness, Employee Policies, HR Compliance, Medical Exams

Can Employers Require COVID Testing of Returning Employees?

As employers reopen businesses across Florida, many are wondering if they can require a negative COVID-19 test before an employee is allowed back to work.  As background, there are 2 types of COVID-19 testing – a test to determine the presence of COVID-19 virus (viral test) – and a test to determine if an employee has COVID-19 antibodies (antibody test).  Medical testing of employees is regulated by the Americans with Disabilities Act (ADA) which states that any mandatory medical test of an employee must be “job-related and consistent with business necessity.”  Due to the current COVID-19 pandemic, the Equal Employment Opportunity Commission (EEOC), the federal agency that enforces the ADA in the workplace, has issued guidance that COVID-19 viral testing of employees is allowable.  If done, employer testing must be conducted in a non-discriminatory manner.   So, an employer may choose to administer COVID-19 viral testing to employees before they enter the workplace to determine if they have the virus.

However, employers may not require COVID-19 antibody testing for employees returning to work, according to the EEOC.  After the Centers for Disease Control (CDC) issued interim guidelines that antibody test results should not be considered when returning employees to the workplace, the EEOC issued an FAQ on June 17 and disallowed the use of antibody testing before permitting employees to re-enter the workplace.

Antibody testing looks for signs in the blood that a person developed antibodies to fight the virus, meaning that a person was exposed to the virus. Antibodies are the body’s way of remembering how it responded to an infection so it can attack it again if exposed to the same pathogen.  An antibody test constitutes a medical examination under the ADA. In light of the CDC’s Interim Guidelines, the EEOC determined that an antibody test does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA.

It is also important to note that accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later.

Other than testing, employers may also take other actions to protect employees and customers, including requiring workers to wear masks, checking employee temperatures, installing protective barriers, mandating social distancing and requiring COVID-19 symptom questionnaires daily.

300 Log, Construction, Department of Labor, HR Compliance, OSHA, Record Keeping, Risk Management, Safety, Workers Compensation

OSHA Changes Enforcement – When to Report COVID-19 Cases at Work

On May 19, OSHA updated its enforcement guidance to employers (and Compliance Officers) with respect to the recording of occupational illnesses, specifically coronavirus disease (COVID-19) cases. In mid-April, OSHA previously advised that most employers (except healthcare employers) did not have an obligation to analyze whether an employee’s COVID-19 case was work-related, and could assume it was not work-related. OSHA’s new guidance, effective May 26, states that employers must follow three-steps to determine if a COVID-19 case of an employee must be recorded on the OSHA 300 log (following the general recordkeeping regulation 1904). A case must be recorded to your OSHA 300 log if the case is:

  1. Confirmed as COVID-19;
  2. Work-related; and
  3. The case meets one of the general recording criteria (i.e. missing work, beyond first aid).

Obviously, with a communicable disease, it is very difficult to determine if the virus was picked up at work, or during social and nonwork-related sources.  If there is an OSHA inspection, it will be up to an OSHA compliance officer to evaluate the facts and circumstances of the COVID-19 case, and evaluate the following guidelines to determine if it is work-related.  If the case should be recorded (and is not), an OSHA Citation may be issued for a recordkeeping violation.  OSHA will ask the following:

  • Was the employer’s investigation reasonable into the circumstances? Employers should ask some basic questions to aid its’ decision, such as: ask the employee about the possible source; ask about general work and non-work activities to assess potential exposures; and review workspace and if any co-workers in close contact have been diagnosed positive.
  • What evidence was available to the employer? Was it acted upon? If information changes over time, the obligation to record may be impacted, and a case may need to be added/deleted from the OSHA 300 log.

What kind of evidence would support a decision that an employee’s COVID-19 case was “work-related?” (1) Other workers in close proximity have been diagnosed with COVID-19 and there is no alternative explanation; (2) a vendor, customer or facility person was in close proximity to the employee and tested positive for COVID-19; and (3) their job required frequent, close contact with the public in a location where COVID-19 was prevalent. OSHA advises that work-relatedness is not likely if the employee worked outside, closely or frequently associated with a family member or acquittance who has COVID-19 (not co-worker) and exposes employees at a time period when they are of infectious.

After its investigation into work-relatedness, an employer should not enter the case on its OSHA 300 log if it cannot determine whether it is more likely than not that exposure in the workplace played a casual role with respect to a specific employee’s COVID-19 illness. Whether a case occurred at work or not, employers have a responsibility to protect workers from exposure to COVID-19.

COVID-19 cases are coded as respiratory illnesses on the OSHA 300 log. An employee may voluntarily request not to have their name put on the OSHA 300 log because it is an illness.

Business Expenses, Compensation, Contagious disease, Coronavirus, Employee Policies, Human Resources, Paycheck Protection Program, SBA

SBA Publishes the PPP Loan Forgiveness Application

The U.S. Small Business Administration (SBA) just released the Paycheck Protection Program forgiveness rules through the publishing of the PPP Loan Forgiveness Application. With worksheets and instructions, the SBA has given employers a better understanding of how the forgiveness application process will go.

So, what did we learn?  Here are the big takeaways.

  • Payroll and non-payroll costs may be incurred or paid during the covered period or alternative payroll covered period. Under the CARES Act and prior FAQs, it required that to be forgiven, expenses had to be incurred and paid during the period.  So, payroll costs and non-payroll costs may be paid outside of their applicable periods as long as they are paid on or before the first applicable due date immediately following the end of the applicable period for such costs.
  • The process to request forgiveness is spelled out. A borrower will submit its PPP Loan Forgiveness Application to its SBA lender (probably an online process), along with various supporting documentation (i.e. PPP Schedule A, Calculation form, documentation verifying cash compensation and non-cash compensation benefit payments for each employee, documentation of full-time equivalent employees during the covered period and proof of non-payroll cost arrangements in place prior to February 15, 2020, and amounts paid).
  • Demographic information is requested (but voluntary).
  • Documentation from the PPP Loan process must be retained for 6 years after the date the loan is forgiven or repaid in full.
  • The Alternative Payroll Covered Period only applies to payroll costs (not non-payroll costs).
  • It is likely advantageous to wait until after June 30, 2020, to submit a PPP Application for Forgiveness since the salary/hourly wage reduction safe harbor and FTE reduction safe harbor are calculated as of June 20, 2020.
  • Your loan forgiveness amount can be calculated using the Worksheet attached to the Loan Forgiveness Application, and the Worksheet can be used to determine if the salary/wage safe harbor of the FTE reduction safe harbor are met.

Will forgiveness be reduced if employees refuse to return to work?

  • No, but an employer needs to make a good faith written offer to rehire during the covered period and the employee needs to reject the offer. Also, employees that voluntarily resign, request reduced hours, or are fired for cause, are entered as FTE reduction exceptions and they will not reduce your loan forgiveness.

Stay tuned for more information published by the SBA on this important topic.

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