All posts by stu

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.

 

 

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.

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