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300 Log, Contagious disease, Coronavirus, Department of Labor, Employee Illness, HR Compliance, OSHA, Record Keeping, Safety

Are Employee COVID-19 Cases OSHA Recordable?

The number of COVID-19 cases has passed 500,000 nationwide and 20,000 in Florida. Many of these cases occurred after workplace exposure, such as from a customer or co-worker. But, since the virus can be picked up anywhere, how can a work-related source be confirmed so that the case is recorded as an occupational illness on the OSHA 300 form? Fortunately, on April 10, the Occupational Safety and Health Administration (OSHA) issued guidance to employers (excluding medical providers, first responders and correctional facilities). OSHA’s guidance relieves employers of some responsibility for investigating and recording cases of COVID-19 among employees, but businesses still must record those that are obviously work-related.

Under 29 CFR § 1904.5, an employer must consider an injury or illness to be work-related if an event or exposure in the work environment (as defined by 29 CFR § 1904.5(b)(1)) either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness. Work-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment unless an exception applies.

Originally, OSHA had advised employers to record all work-related cases of COVID-19 on its OSHA 300 log. But since it’s not always clear whether an employee picked up the virus at work or brought it to work from somewhere else, its difficult to determine. The new OSHA Guidance confirmed that COVID-19 is a recordable illness, but employers may assume a COVID-19 case is non-work related unless there is objective evidence that the COVID-19 case happened at work. Employers are not obligated to investigate the illness and work-relatedness, except in two specific circumstances.

Employers are required to record cases whenever:

  1. There is objective evidence that a COVID-19 case may be work-related. This could include, for example, a number of cases developing among employees who work closely together without an alternative explanation.
  2. The evidence was reasonably available to the employer (such as when there is evidence that information was given to the employer by employees, and if the employer learns about the work-relatedness in the ordinary course of managing its business and employees.

Once an employer is aware that a COVID-19 case is work-related, an employer is required to record the work-related illness on its OSHA 300 log. OSHA also issued an interim enforcement response plan for COVID-19 for its field offices on April 14.  Stay safe and healthy, and if you have HR questions or need assistance, just give us a call at (727) 350-0370.

Compensation, Contagious disease, Coronavirus, Employee Illness, HR Costs, Human Resources, Unemployment

Florida Unemployment Questions about COVID-19 Situations

As the Coronavirus situation continues, employees are laid off and/or take paid sick days, there are many questions about how these situations affect Florida unemployment benefits (called “RA benefits”).  The Florida Department of Economic Opportunity (DEO) operates the Reemployment Assistance Service Center and CONNECT website that processes employee unemployment claims.  Here are some important questions and answers for employers and employees shared by DEO.  Since the Reemployment Office, not the employer, makes benefit decisions, employees should be encouraged to complete an online RA application to determine their individual eligibility for RA benefits.  Also, visit the DEO COVID-19 Resources webpage for more information.

Can employees go to a local CareerSource office to apply for benefits?  No. Employees must file for benefits by going online to https://connect.myflorida.com and follow the instructions.  Paper applications are also being accepted, but the processing could potentially take longer than an online application. FedEx is offering free printing and mailing options for paper applications at over 100 storefronts on Florida.

What employees are eligible for RA benefits?  An employee is eligible to apply for RA benefits due to being on a temporary layoff.  If on a temporary layoff, you do not need to seek work with other employers but must be able to work, stay in contact with your employer and be available to work when called back by your employer.  For the company closed, no work is available, or your position was eliminated due to budget cuts and you have not been given a return to work date (permanent layoff), an employee is eligible to apply.

Is the one week waiting period waived?  Yes, for a limited time.  On April 1, Governor DeSantis directed DEO to waive the required wait week to receive RA benefits from March 28 through May 8, 2020.

If an employer reduces employee hours as a result of COVID-19, are RA benefits available?  Maybe.  If employee hours have been reduced significantly, they are encouraged to apply for RA benefits.  The Re-employment Office will review and determine eligibility.

If employees do not want to work due to risk of exposure to COVID-19, are they eligible for RA benefits? No.  RA benefits are available to individuals who are unemployed through no fault of their own, assuming all other eligibility requirements are met.

If an employee is forced to remain at home because they are quarantined by a medical professional or by government direction, is he/she eligible for RA benefits?  Maybe.  To receive RA benefits, an employee must be able and available for work.

If an employee stays home with children because schools are closed, are they eligible for RA benefits?  RA benefits are available to individuals who are unemployed through no fault of their own. If you are out of work due to personal reasons, you will not qualify for RA benefits. You can file an application online to determine the possibility of receiving benefits.

Are self-employed people eligible for Florida RA benefits?  Since self-employed individuals generally do not pay Unemployment Insurance taxes, they are not eligible for RA benefits.

Are self-quarantined individuals eligible for RA Benefits?  To receive RA benefits, an individual must be able and available for work.  Able to work means physically and mentally capable of performing the duties of the occupation in which work is being sought. Available for work means actively seeking and being ready and willing to accept suitable work. An individual may be considered available for work if there are no limitations placed on the individual that would constitute withdrawal from the labor market.  If you are on a temporary layoff you must be available to work only for the employer that has temporarily laid you off.

Will an employer’s tax account be affected by RA Claims for COVID-19 Reasons?  Currently, there are no modifications to Florida law regarding employer’s chargeability, contributions and/or reimbursements. Employers are encouraged to provide detailed responses on the Notice of Claim regarding how COVID-19 affected the temporary or permanent separation or leave of absence. Employers will receive their Notice of Claim in their CONNECT inbox.

Can an Employee receive RA Benefits if they are told to go home for medical reasons?  While on paid medical leave, an employee would not be considered “unemployed” under Florida RA laws. Therefore, if an employee is receiving paid leave benefits, they are ineligible for RA benefits.  However, if an employee is on unpaid leave, they may be eligible depending on the circumstances of the leave of absence.

Business Expenses, Coronavirus, Department of Labor, Employee benefits, Employee Policies, FMLA, HR Compliance, Sick Leave

New DOL Regulations (FFCRA) – How to Document Exempt Status from Paid Leave

The much anticipated Department of Labor Regulations (temporary) were just published on Wednesday, April 1. The new regulations explain how an employer with fewer than fifty (50) employees must document its declared exemption from the paid Emergency Paid Sick Leave and Emergency FMLA.  Here are the new DOL Regulations on the FFCRA.

What employers qualify for the Exemption?
Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide paid sick leave and paid expanded FMLA due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern.  Read Answer 58.
Who makes the determination of the Exemption?
An authorized officer of the small business may make the determination that the imposition of the paid leave requirements would jeopardize the viability of the business as a going concern (in one of 3 ways).
Is the exemption applicable to all paid leave requests?
No.  For the eligibility reasons other than school closings and child care unavailability, the paid sick leave (80 hours) portion of the FFCRA must still be provided to eligible employees.
How does a small business show its viability is jeopardized?
  1. The leave requested under either section 102(a)(1)(F) of the FMLA or section 5102(a)(5) of the EPSLA would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
  2. The absence of the Employee or Employees requesting leave under either section 102(a)(1)(F) of the FMLA or section 5102(a)(5) of the EPSLA would entail a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business, or responsibilities; or
  3. There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the Employee or Employees requesting leave under either section 102(a)(1)(F) of the FMLA or section 5102(a)(5) of the EPSLA, and these labor or services are needed for the small business to operate at a minimal capacity.
Is the documentation of the Exemption sent to the DOL?
No.  An Employer that denies an Employee’s request for Paid Sick Leave or Expanded Family and Medical Leave pursuant to § 826.40(b) shall document the determination by its authorized officer that it is eligible for such exemption and retain such documentation for 4 years.
Business Expenses, Compensation, Coronavirus, Department of Labor, Employee benefits, Employment Poster, Paid Leave

Department of Labor’s New Paid Sick Leave and Expanded FMLA Poster (English and Spanish)

On March 25, the Department of Labor released the NEW FFCRA Employee Rights Poster for paid sick leave and expanded Family and Medical Leave. Click to download FFCRA poster (English).  On Friday, the Spanish version of the FFCRA poster (spanish) was made available.

Employers with fewer than 500 employees are required to post a notice of the Families First Coronavirus Response Act (FFCRA) requirements in a conspicuous place on its premises. An employer may satisfy this requirement by emailing or direct mailing this notice to employees, or posting this notice on an employee information internal or external website. Right now, the poster is only in English, but DOL is working to translate the poster into multiple languages. The poster should remain in the workplace from April 1 thru December 31, 2020.  Employers with fewer that 50 employees (previously not covered by the Family and Medical Leave Act) are required to post the notice.

Can I put the poster in a binder? No, if you are running out of wall space due to all the federal and state posters, employers are not allowed to put federal notices in a binder. For all posters, employers must display federal notices in a conspicuous place where they are easily visible to all employees-the intended audience.

Do I have to share the poster with laid off employees? No, the DOL states that the FFCRA requirements on the notice/poster apply only to current employees so the poster does not need to be shared with employees that have recently been laid off.

Do I have to give notice of the FFCRA requirements to new hires?  Yes, if you hire a job applicant, you must convey this notice to them, either by email, direct mail, or by posting this notice on the premises or on an employee information internal or external website.

Read all the Frequently Asked Questions about the new poster.

More Information about Paid Sick Leave Reimbursement is coming from the IRS
The IRS has advised employers that if it is paying out COVID-19 sick leave after April 1, it may retain and access funds that they would normally remit to the IRS in payroll taxes. If the paid sick leave is more than its payroll tax liability, an employer will be able to file for an immediate refund on forms that the IRS expects to issue this week. The IRS expects to process these refunds within 2 weeks under a new expedited procedure. Keep checking the IRS’s Coronavirus Tax Relief webpage for the most up to date information.

Contagious disease, Coronavirus, Department of Labor, Employee benefits, Employee Illness, Employment Poster, Paid Leave, Wage and Hour

Wage and Hour Division Publishes New Guidance on Paid Leave and Expanded FMLA

On March 24, the Department of Labor (Wage and Hour Division – COVID Response) issued some new information for employers and employees about the Families First Coronavirus Response Act (FFCRA).  As provided under the legislation, the U.S. Department of Labor will be issuing implementing actual regulations (planned for early April).  Additionally, as warranted, the Department will continue to provide compliance assistance to employers and employees on their responsibilities and rights under the FFCRA.

Read the latest from the Wage and Hour Division:

Questions and Answers
Employer Paid Leave Requirements
Employee Paid Leave Rights

Key Takeaways and Updates for Employers

  • April 1 will be the effective date for these new paid leave law (not April 2).
  • DOL plans to publish a new FFCRA poster on March 25 that will need to be posted at employers covered by the new law.
  • The law is not retroactive to leave taken prior to April 1.
  • An employer counts employees (to determine 500 or less) at the time an employee’s leave is taken.  Further guidance on counting employees and joint employers.
  • Not much guidance on the exemption for under 50 employees.  To elect this small business exemption, an employer should document why your business meets the DOL criteria (it “jeopardizes the viability of the business”), which will be addressed in more detail in new regulations coming soon.  Do not send any materials to the DOL when seeking the small business exemption.
  • DOL gave further details about how to calculate the regular rate of pay for purposes of the FFCRA.
  • An employer cannot deny the use of new emergency paid sick leave to an employee that already took paid leave for a reason identified in the FFCRA prior to April 1, 2020.
  • Due to how fast things change, stay up to date by participating in one of the many webinars presented by local and national employment law firms and payroll companies.

The Department of Labor also announced this morning (in Field Assistance Bulletin 2020-1) a 30 day non-enforcement period (through April 17) provided an employer has made reasonable good faith efforts to comply with the paid sick leave and extended family and medical leave law.  The following factors must be present to find “good faith” compliance:

  1. Employer remedies any violations including making affected employees whole as soon as practicable.
  2. Violations were not willful (i.e. employer knew or showed reckless disregard for the matter of whether its conduct was prohibited).
  3. The Department receives a written commitment from the employer to comply in the future.

After April 17, the limited enforcement stay will be lifted and the DOL will fully enforce violations of the Act.

Contagious disease, Coronavirus, Department of Labor, Employee Rights, HR Compliance, IRS, Paid Leave, Payroll

Treasury, IRS and Labor announce plan to implement Coronavirus-related paid leave

On Friday (March 20), the U.S. Treasury Department, Internal Revenue Service (IRS), and the U.S. Department of Labor (Labor) announced that small and midsize employers can begin taking advantage of two new refundable payroll tax credits, designed to immediately and fully reimburse them, dollar-for-dollar, for the cost of providing Coronavirus-related leave to their employees. This relief to employees and small and midsize businesses is provided under the Families First Coronavirus Response Act (Act), signed by President Trump on March 18, 2020.
The Act will help the United States combat and defeat COVID-19 by giving all American businesses with fewer than 500 employees funds to provide employees with paid leave, either for the employee’s own health needs or to care for family members. The legislation will enable employers to keep their workers on their payrolls, while at the same time ensuring that workers are not forced to choose between their paychecks and the public health measures needed to combat the virus.
KEY TAKEAWAYS
  • Employers receive 100% reimbursement for paid leave pursuant to the Act.
  • Self-employed individuals receive an equivalent credit.
  • Reimbursement will be quick and easy to obtain.
  • Immediate dollar for dollar offset against payroll taxes will be provided. If those amounts are not sufficient to cover the cost of paid leave, employers can seek expedited advance from the IRS by submitting a streamlined claim form that will be released next week.
  • Employers with fewer than 50 employees are eligible for an exemption from the requirements to provide leave to care for a child whose school is closed, or child care is unavailable in cases where the viability of the business is threatened. The exemption will have simple and clear criteria that make it available in circumstances involving jeopardy to the viability of the employer’s business as a going concern.  Emergency guidance and rule-making by the Labor Department will clearly articulate the standard.
  • Please read more about the Treasury, IRS and Labor Departments plan to allow businesses to swiftly recover the cost of providing Coronavirus-related leave, click here for more information about Coronavirus Tax Relief, and visit the website next week for information about the advance payment of the credits.
  • There will be a 30-day non-enforcement period for businesses making a reasonable effort.
Employee Policies, Employment Poster, Florida rules, HR Compliance, Human Resources, Human Trafficking, Posters, Record Keeping, Risk Management, Training

New Florida Anti-Human Trafficking Compliance Requirements!

While massage establishments were a primary focus of Florida’s Anti-Human Trafficking Bill 2019-152, this is not the only industry facing new licensing requirements, which are designed to help expose, prevent and reduce human trafficking suffering and victimization.

First, if your business operates under licensing from the Florida Board of Massage Therapy, you are undoubtedly aware of the changes that have been underway.  You must:

  • Have registered a qualified Designated Establishment Manager by Jan 1, 2020*
  • Implement a reporting procedure for suspected human trafficking per Board guidelines (as yet under development)
  • All licensed providers must complete an approved 1 hour course on Human Trafficking by January 1, 2021
  • Display Human Trafficking workplace posters by January 1, 2021

If you are NOT operating a massage establishment, but you ARE a healthcare provider licensed by any of these other Florida professional Boards:

  • Acupuncture, Medicine
  • Osteopathic Medicine
  • Chiropractic Medicine
  • Podiatric Medicine
  • Optometry
  • Pharmacy
  • Dentistry
  • Nursing Home Administration
  • Occupational Therapy
  • Dietetics and Nutrition
  • Respiratory Care
  • Physical Therapy

Here are the parts of the new regulations with which you must comply:

  1. Display the Anti-Human Trafficking workplace poster in your workplace no later than January 1, 2021.  The standard poster includes English and Spanish, but versions are available that include content in Mandarin and Creole if these languages are spoken by employees.
  2. By January 1, 2021, all healthcare providers licensed by the above-listed Boards must complete a board-approved 1-hour training course on Human Trafficking.   Click here for a list of approved courses.

For more details about the Florida’s anti-human trafficking measures, click here.

 

Americans with Disabilities Act, Contagious disease, Department of Labor, Discrimination, Employee Illness, Employee Policies, Fair Labor Standards Act, Human Resources, Risk Management, Safety, Wage and Hour, Work from Home

Coronavirus Guidance for Florida Employers

Due to the spread of Coronavirus, President Trump and Florida Governor Ron DeSantis have declared a state of emergency and are asking employers to monitor the situation and take action to help slow and stop the spread of COVID-19. The Centers for Disease Control and Prevention (CDC) has issued interim guidance to businesses and employers and will update as needed and when new information becomes available. We encourage clients to check the CDC webpage and develop plans to follow these important recommendations.

HERE IS A QUICK RUNDOWN OF THE RECOMMENDED STRATEGIES FOR EMPLOYERS TO USE NOW:

  • The incubation period for COVID-19 varies between 2 and 14 days.
  • Actively encourage sick employees to stay home from work.
  • Employees showing respiratory illness should be sent home and told to contact the Florida Health Department at 850-245-4444 or the local health department.
  • Educate employees about COVID-19 by sharing the CDC Fact Sheets and information pages on “Symptoms” and “If you are Sick.”
  • Print CDC posters about washing hands, cough and sneeze etiquette and maintaining good personal hygiene for display.
  • Perform enhanced environmental cleaning of common surfaces, such as work stations, countertops, and doorknobs.
  • Make disinfecting wipes and hand sanitizer available to employees.
  • Consider developing an interim company policy for business travel, including canceling business travel, encouraging online/remote enabled meetings and avoiding geographic places with high concentrations of COVID-19 cases.
  • Maintain employee confidentiality if there is a positive or suspected COVID-19 case. Inform co-workers who worked in close contact with the person (3-6 feet in the preceding 14 days) to leave work for 14 days and to get tested. Do not disclose the name of the person.
  • Practice increased social distancing when possible, including work from home options and telecommuting.
  • Review the recent DOL guidance on OSHA and wage and hour issues associated with the coronavirus outbreak.
    If an employee becomes infected, has a suspected case, or was in close contact with a person with a confirmed case, have a plan to take action. Read the following article on Comprehensive FAQs for Employers on COVID-19 published from Fisher Phillips law firm.
  • Check frequently with the CDC and Florida Department of Health (COVID) websites for updates and the latest recommendations.

 

Construction, Drug Free Workplace, Employee Handbook, Employee Policies, HR Costs, Human Resources, Medical Exams, Post offer medical questionnaire, Recruiting, Risk Management, Safety, Workers Compensation

18 Actions to Lower Workers’ Comp Rates for Florida Contractors

From our work with Florida construction companies and specialty trades in the last ten years, we have identified 18 proven action items that will shrink the risk of costly workers’ compensation claims and lower the mod rate of Florida contractors.

Here are the top four actions that will make a difference:

  1. Improve the hiring process – Avoid hiring a problem employee by developing a meaningful hiring process.  Have a plan and be more deliberate about hiring.  Hire based on skills, past work experience, reputable work history, not crazy reasons for leaving past jobs – and a “can do” attitude.  Conduct an interview and make sure they are serious about the position.  It is also important to check references for applicants – call previous employers and see what can be confirmed.  Too many jobs, bad reasons for leaving, not providing any supervisor references can all be red flags.  Need help? Call your local Florida Career Source Center, https://www.careersourceflorida.com/, and have their Business Services team pre-interview and qualify applicants for your company.  It’s free.
  2. Use a written 90 day probationary period – When you have each new hire sign a written 90 day probationary period acknowledgment, your company will not pay unemployment if the employee is terminated for unsatisfactory performance within the first 90 days.  If the new hire is having problems with attendance, not following instructions, making mistakes – don’t wait too long to make a decision.  A successful motto is: Slow to hire, quick to fire.
  3.  Update your New Hire Packet – Contractors should use a multi-page Employment Application.  It should ask for important information about past work, reasons for leaving jobs, ability to perform job duties, licenses, other skills, criminal convictions and reliable transportation.  Other critical new hire forms include the mandatory ones (i.e. I9, W4 and the Florida Healthcare Exchange info) as well as forms that can learn more about their ability to do the job.  To verify medical capability during the application phase, a contractor may use an Applicant Questionnaire (describe job duties and ask if they can do it) or use a Post Offer Medical Questionnaire.  The most expensive option is to require a physical examination for each new hire.  Pre-employment physicals can be performed by walk in clinics or occupational medical centers – to test for physical agility and back/lifting evaluation.  Just make sure you test all applicants for a position type, not just some candidates.
  4. Written Safety program – Contractors are eligible for a 2% reduction in workers’ compensation premiums for a written safety program.  FL Stat 440.1025 describes the required safety program sections. Download the Employer Certification form and submit to your workers’ compensation carrier.  A Safety Plan template can be created using the FREE resources from the University of South Florida, Safety Consultation Services.  Click the following link and create a safety program.

Download all Eighteen (18) Human Resources actions to lower the workers’ compensation costs for Florida Contractors.  If you want some expertise to help you implement these steps, just give us a call.  If your style is more DIY, order our Complete HR Manual for Florida Contractors (2020) which contains the forms and policies needed to implement your solution.  Start lowering your work comp rates today.  If you saw me speak at Carmen’s Construction Comic continuing education classes in 2020 – you receive a discount – just let us know.

General HR Questions, Human Resources, I9 Form, Immigration, New Hire, Record Keeping, USCIS

New I9 for 2020! Get it now

On Jan. 31, 2020, USCIS published a notice announcing a new version of Form I-9, Employment Eligibility Verification. The new version contains minor changes to the form and its instructions. Employers should begin using this updated form right away. Click here for the latest I9 Form (expires 2022) and Instructions.

The USCIS notice provides employers additional time to make necessary updates and adjust their business processes. Employers may continue using the prior version of the form (dated 07/17/2017 N) until April 30, 2020. Starting May 1, 2020, all employers must use only the new form (10/21/2019 version date). The version date is located in the lower-left corner of the form.

Instructions

  • Clarified who can act as an authorized representative on behalf of an employer
  • Updated USCIS website addresses
  • Provided clarifications on acceptable documents for Form I-9
  • Updated the process for requesting paper Forms I-9
  • Updated the DHS Privacy Notice

Click here for the Handbook for Employers for Properly Completing the Form I9.

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