All posts by stu

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.

Accommodation, Contagious disease, Coronavirus, EEOC, Employee Policies, General HR Questions, Human Resources, OSHA, Safety

New Updated CDC Guidelines for Reopening Workplaces

Late last week, the Centers for Disease Control (CDC) released updated information and a new tool to assist employers in making (re)opening decisions during the COVID-19 pandemic, especially to protect vulnerable workers.  First, a Workplace Decision Tree advises employers to first review state and local orders and directions to determine the most appropriate actions that meet any unique needs and circumstances of the local community. Florida employers have guidance from the Governor’s Safe, Smart, Step by Step Plan for Florida, and your county/city may have other guidelines.

The CDC’s Decision Tree recommends to:

  • Put certain Health and Safety actions in place to include: hygiene practices, handwashing, wearing face coverings, cleaning/disinfecting, social distancing, modifying business travel and training; and
  • Implement ongoing monitoring, including procedures to check for signs and symptoms of employees coming to work, encourage sick employees to stay home, a procedure for sick employees, monitor updates from local employers, and monitor employee absences.

There are additional decision tree tools on Cleaning and Disinfecting for workplaces and businesses – and the steps to keep common surfaces clean and disinfected.

Second, there were also updates to the Interim Guidance for Businesses and Employers Responding to Coronavirus Disease 2019 (COVID-19), May 2020.  As an employer, if your business operations were interrupted, resuming normal or phased activities presents an opportunity to update your COVID-19 preparedness, response, and control plans. All employers should implement and update as necessary a plan that:

  • Is specific to your workplace,
  • identifies all areas and job tasks with potential exposures to COVID-19, and
  • includes control measures to eliminate or reduce such exposures.

Some of the highlights of the recommended actions to include in your plan are:

  • Sick employees should follow the CDC-recommended steps. Employees should not return to work until the criteria to discontinue home isolation are met, in consultation with healthcare providers.
  • Consider conducting daily in-person or virtual health checks (e.g., symptom and/or temperature screening) of employees before they enter the offices.  Employers may use social distancing, barrier or partition controls, or personal protective equipment (PPE) to protect the screener.
  • Conduct a thorough hazard assessment to determine if workplace hazards are present, or are likely to be present, and determine what type of controls or PPE are needed for specific job duties.
  • Remind employees and customers that the CDC recommends wearing cloth face coverings in public settings where other social distancing measures are difficult to maintain.
  • Maintain policies and practices for social distancing.
  • Give customers, guests and visitors what they need to clean their hands and post signage to cover mouths during sneezes and coughs.
  • Follow the Guidance for Cleaning and Disinfecting to develop, implement, and maintain a plan to perform regular cleanings to reduce the risk of exposure to COVID-19.
  • Minimize non-essential business travel  and follow recommended guidelines for essential travel

Read the entire guidance by clicking here.  Here are the top 10 tips for preparing your small business and its employees for the effects of COVID-19.

Consultstu is developing a template COVID-19 Preparedness, response, and control plan for small businesses.

Commercial Motor Vehicle Driver, DOT, E-Verify, Executive Order, Hiring, HR Compliance, I9 Form, Immigration, Record Keeping, USCIS

Can We Accept Expired List B documents for Form I-9 during COVID-19?

On May 1, 2020, the U.S. Citizenship and Immigration Services announced a temporary policy due to the COVID-19 pandemic. Many areas are under stay-at-home orders and some online renewal services have restrictions and employees may experience challenges renewing a state driver’s license, a state ID card, or other Form I-9, List B document. Until further notice, employers may accept expired List B identity documents to complete Form I-9, Employment Eligibility Verification. Read the Temporary Policy.

Any Identity documents found in List B set to expire on or after March 1, 2020, and not otherwise extended by the issuing authority, may be treated the same as if the employee presented a valid receipt for an acceptable document for Form I-9 purposes.

How are expired List B documents noted on the I9 Form?

When your employee provides an acceptable expired List B document that has not been extended by the issuing authority you should:

  • Record the document information in Section 2 under List B, as applicable; and,
  • Enter the word “COVID-19” in the Additional Information Field; and
  • Within 90 days after the termination of this temporary policy, the employee will be required to present a valid unexpired document to replace the expired document presented when they were initially hired.
  • When the employee later presents an unexpired document, you should record the document number and other required information in Section 2 of the Additional Information field, the initial and date the change.

How to handle the I9 Form if the Issuing Authority extends the acceptance of expired documents?

  • Enter the document’s actual expiration date in Section 2;
  • Enter “COVID-19 EXT” in the Additional Information Field; and
  • (optional) Attach a copy of a webpage or other notice indicating that the issuing authority has extended the documents.  In Florida, the Department of Highway Safety and Motor Vehicles (FLHSMV) issued an emergency order to extend the expiration of drivers’ licenses for various time periods.  Click here to review.

How do we handle E-Verify checks for accepted expired List B documents?

E-Verify participating employers should use the employee’s expired List B document number from Section 2 of the Form I-9 to create an E-Verify case as usual within three days of the date of hire.

 

Commercial Motor Vehicle Driver, Contagious disease, Coronavirus, Employee benefits, Florida rules, Human Resources, Unemployment

Florida Unemployed must Re-certify Every 2 weeks

Governor DeSantis announced over the weekend that unemployed Floridians are required to login to the DEO CONNECT Reemployment portal every two weeks to recertify that they are eligible for benefits. This has caused some confusion from furloughed and laid off employees, because the requirement to search for work was extended to May 30, but this is a separate requirement.

On the DEO Reemployment Claimant’s portal, there is an FAQ on this topic. On page 9 of the Reemployment Assistance Resource Guide – COVID-19, it states: “In order to better serve you, Governor DeSantis suspended the bi-weekly reporting requirement until May 9, 2020. However, to comply with federal law, weeks beginning May 10, 2020, claimants will be required to return to the CONNECT system every two weeks to request their benefits or “claim their weeks.” In doing so, the claimants will confirm that they are still unemployed and acknowledge that they are able and available for work should it be offered.”

If you need help claiming reemployment benefits, Florida residents should download the Guide for Claiming your Reemployment Assistance Weeks on the DEO website, and follow the step by step instructions.

Business Expenses, Compensation, Coronavirus, Payroll, Payroll Protection Program, Recall Letter, SBA

What are the basic rules for PPP Loan Forgiveness?

In April, small/mid businesses all over Florida jumped at the chance to obtain SBA loans to help stay in business and fund payroll. The Coronavirus Aid, Relief, and Economic Security Act (CARES Act) Paycheck Protection Program (PPP) authorized billions for qualifying businesses to obtain loans for payroll, benefits, rent and other costs, and the key feature is the “forgiveness” aspect of the Program. The SBA has not issued the final regulations on forgiveness, but here are the basic rules we know so far.

What is forgivable? All PPP loan proceeds (plus accrued interest on the loan itself) are forgivable so long as they are spent on the following expenses incurred and paid during the eight-week period: 1) payroll costs, 2) utilities, 3) rent and 4)mortgage interest. Any amounts spent outside of the eight-week window are not forgivable. Payroll costs must account for 75 percent of the loan forgiveness amount.  Eligible payroll costs are capped at $15,385 maximum per employee (plus benefits).  Utilities, rent and mortgage interest must be in effect as of Feb. 15, 2020.  All eligible expenses must be incurred and paid during the eight week period.

When does the eight week period run?   It begins on the date that the SBA lender makes its first disbursement of PPP loan proceeds, which should occur within 10 calendar days from the date of loan approval.

How can loan forgiveness be reduced?  Your loan forgiveness (the amount the SBA will not require your company to repay) may be reduced according to two methods:  (1) a head-count reduction formula; and (2) a salary-reduction formula.

  • Headcount Reduction: your company maintains employment levels 1) for the eight-week period from the loan origination date or 2) by June 30, 2020, for the average number of full-time equivalents employees per month to, at recipient’s election, either a) the average number of full-time equivalent employees per month from Feb. 15, 2019, and ending on June 30, 2019 or b) the average number of full-time equivalent employees per month from Jan. 1, 2020, and ending on Feb. 29, 2020; or
  • Salary Reduction: your company maintains wages/salaries on each individual employee 1) for the eight-week period from the loan origination date or 2) by June 30, 2020, with a salary that at no time during any pay period in 2019 was greater than $100,000 on an annualized period, and at least 75 percent of what that individual employee’s wage/salary was in the most recent full quarter prior to the origination date of the loan.

What if a laid-off employee rejects recall to work?  An employee who rejects an offer of rehire will be excluded from your company’s calculations for employment level and wages/salaries for forgiveness reduction as long as the company made a good faith, written offer of rehire and the employee’s rejection of such offer is documented.  In addition, an employee that rejects a recall to work also loses eligibility for unemployment benefits.

What documentation can help your company obtain maximum forgiveness?  Companies receiving PPP funds should work closely with their CPA and corporate counsel.  Here are some tips from the experts.

  • Account for all eligible expenditures made over the eight-week period.
  • Monitor spending on eligible expenses throughout the forgiveness period to determine whether it meets the 25 percent limit at the end of the forgiveness period
  • Maintain records of all forgivable payments (payroll costs include all federal and state taxes paid)
  • Other expenses, should include invoice and payment receipt
  • Due to the “incurred and paid” requirement, you may need to run payroll on the last day of your eight week period to capture all eligible payroll expenditures.
  • Send recall letters to all laid-off employees and maintain proof of delivery, and obtain written responses from employees refusing your offer of rehire.
  • Keep checking with your SBA lender for updates to forgiveness regulations and a sample forgiveness packet.

 

Construction, Contagious disease, Coronavirus, Employee Policies, Human Resources, Posters, Risk Management, Safety, Training

COVID-19 Safety at Construction Sites

In Florida, general contractors, construction trades, subcontractors and other construction related businesses have continued to operate during the “safer at home” orders because they were designated as essential businesses. There is also some evidence that working outside, in the sunlight may actually slow the spread of COVID. The CDC has noted that generally coronavirus survives for shorter periods at higher temperatures and higher humidity.  That is good news for Floridians.  However, regardless of the temperature, and place of work, all workers need to follow recognized safe practices.  The Occupational Safety and Health Administrative (OSHA) recently published guidance for construction worksites.  The OSHA one page information sheet is a great toolbox meeting topic to keep your workers aware of COVID-19 matters and slow the spread of the virus.

The following tips will help your company reduce the risk of exposure to the COVID-19 on its construction sites:

  • Encourage workers to stay home if they are sick.  Follow CDC guidelines.
  • Workers with symptoms of COVID-19 should be sent home and advised to call their doctor, the county health department, or the Florida COVID-19 hotline at 1-866-779-6121.  Mobile testing sites are becoming more and more available in most communities.
  • Allow workers to wear face coverings over their nose and mouth to prevent them from spreading the virus.
  • Document training of workers about how to properly put on, use/wear, and take off face coverings.  Share the CDC Face Coverings training handout.
  • Continue to use other normal measures, including personal protective equipment (PPE) needed to protect employees from other known construction job hazards
  • Avoid physical contact with others and direct employees/contractors/visitors to increase personal space to at least six feet, where possible. In work trailers and common areas, workers should maintain social distancing.  Put up signage to advise workers.
  • Post signs and follow respiratory etiquette, including covering coughs and sneezes.
  • Promote handwashing and provide alcohol-based hand sanitizer containing at least 60 percent alcohol.
  • Obtain the SDS sheet for all commercial cleaning chemicals used to kill surface germs and coronavirus.
  • Shared tools or equipment should be wiped down with alcohol-based wipes before and after use.  Follow any other cleaning recommendations given by the equipment manufacturers or distributors.
  • Keep in-person meetings (including toolbox talks and safety meetings) as short as possible, limit
    the number of workers in attendance, and use social distancing practices.
  • Clean and disinfect portable jobsite toilets regularly. Hand sanitizer dispensers should be filled
    regularly.  Frequently-touched items (i.e., door pulls and toilet seats) should be disinfected regularly.

Keep checking the OSHA webpage for COVID-19 matters, to stay up to date with news and developments.

Contagious disease, Coronavirus, Employee Illness, Employee Policies, Executive Order, Florida rules, General HR Questions, HR Compliance, HR Resources, Human Resources, Leave of Absence, OSHA, Risk Management, Safety, Sick Leave, Work from Home

Workplace Preparation for “Smart, Safe and Step by Step” Return to Work

On April 29, 2020, Governor DeSantis issued Executive Order 20-112 called Safe, Smart, Step by Step Plan for Florida’s recovery.  The plan involves individual responsibility (limiting personal interactions and avoiding large groups), senior citizens and individuals with significant underlying medical conditions are still encouraged to stay home, and many businesses have been given the green light to start opening.  The Executive Order provides limited guidance to affected businesses, mainly on store capacity and the number of guests, and reinforces the expectation that all businesses will continue abiding by the safety guidelines issued by the CDC and OSHA.    

If your business is getting ready to reopen, here are some guidelines to consider.  It is important to develop a plan for your employees (and customers) that provides appropriate protection and follows the recommendations of the CDC and OSHA.  Regardless of your business type, a well designed re-opening plan will help restore employee and customer confidence.  

The following COVID-19 Workplace Reopening Checklist (download a copy here) is provided to assist our clients in getting back to business safely:

SOCIAL DISTANCING:

  • Work Schedules:  Stagger work times and maximize work-from-home capability
  • Leave:  Flexible leave policy if possible
  • Meetings:  Utilize virtual meeting technology or cancel non-essential meetings
  • Workstations:  Increase distance and/or consider installing dividers/shields
  • Vendors & Visitors: Reduce access or reschedule access times
  • Breaks:  Stagger employee breaks

SANITATION:

  • Sanitize:  Ensure the workplace is cleaned to CDC recommendations
  • Maintenance:  Upgrade or augment cleaning service agreement as needed
  • Hand Sanitizer:  Distribute sanitizer around the office
  • Wipes:  Maintain sufficient quantities, use on common surfaces and office equipment daily
  • Tissues:  Maintain around the office with sufficient trash cans
  • PPE:  Employees may elect to wear their own face-covering (per CDC recommendation)

WORKPLACE BEHAVIOR:

  • Etiquette:  Avoid use or touching of workspace and equipment of others
  • Hands:  Avoidance of face-touching and extra attention to hand-washing
  • Surfaces:  Shared responsibility for wiping down any common surfaces and objects

COMMUNICATIONS:

  • Designated a POC:  Assign role of COVID-19 coordinator and point of contact
  • General Signage:  Post signs throughout workplace about distancing, behavior guidelines, personal hygiene
  • Restroom Sign:  Install signs in restrooms to encourage handwashing
  • Education:  Distribute info about COVID-19 symptoms and safety
  • Information: Establish a forum for discussion, concerns, questions, and updates

MONITORING / SCREENING:

  • Screen Workers: Screen for symptoms via Questionnaire and temperature taking; develop procedures and protocols as needed.
  • COVID-19 Positive Workers: Asymptomatic employees may return per CDC – 8th day after positive test if not ill, have been out for an additional 3 days post-isolation and will wear a mask.
  • If Worker has Symptoms:  Any employee with symptoms should stay home or go home, call doctor, health department, or FL COVID-19 hotline.
  • If Worker is Sent Home:  Per CDC, return after 3 days of no fever (without medication) and respiratory symptoms have improved for 3 days, and at least 7 days have passed since initial symptoms; or, doctor’s note that no COVID-19.

Check back with the COVID-19 areas of the CDC and OSHA websites for future updates.

 

Business Expenses, Compensation, Coronavirus, HR Costs, Insurance, Workers Compensation

Non-Working Employees Payroll and Work Comp Premium Calculation

As employers are struggling to maintain business operations, or are confronting a full or partial shutdown, every cost and expense is being closely scrutinized.  The organization that regulates workers’ compensation rates, NCCI, recently published some FAQs for employers and carriers about the COVID-19 situation.  Individual states will approve and interpret the NCCI rules, and insurance carriers will need to follow any state regulatory and enforcement changes.

Several clients have asked an important question related to cost saving.  Is the payroll paid to employees that are staying home and not working (such as under the Payroll Protection Program) included in the premium calculations of its workers’ compensation policies?

On April 17, an NCCI update stated:  NCCI recognizes that circumstances around COVID 19 are extraordinary and warrant an expedited rule change to address the question of payroll for employees who are being paid but are not working as it relates to the basis of premium. If approved, this rule change will be distinct from “idle time” under our current Basic Manual rules (Rule 2-F-1), and a corresponding statistical code 0012 will be created for reporting this payroll. This payroll will not be used in the calculation of premiums.  Other actions are underway by some companies and individual states to respond to this question, so an emphasis on creating as uniform an approach as possible is being pursued for approval by regulators. The details of the proposed rule changes will be included in a filing that will be submitted to state regulators in all NCCI states. The filing is expected to be made the week of April 20.

According to Duke Mills of WorkComp Solutions Inc., it is critically important for employers to code the payroll for non-working, stay at home employees in a way that can be easily identified during your year-end premium audit.  Remember, your auditor may not bring it up, so you should keep a note about it so you can request this payroll be excluded from your premium calculation.  Duke says that WorkComp Solutions attends the workers’ compensation audits for clients to ensure that all proper deductions and offsets are applied to the premium calculation.

 

 

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