All posts by stu

Coronavirus, Department of Labor, E-Verify, Employee Handbook, Employee Policies, Employment Poster, HR Compliance, Human Resources, I9 Form

Get 2021 Started Right: 10 HR Action Items

Now that we have closed out 2020, and started 2021, its time for Human Resources/Payroll to take some important year-end actions to ensure a smooth transition into 2021. Consultstu has created a 10 point HR Checklist to ensure your Company is up to date with fast-changing federal/state rules and regulations.

  1. Update your Applicant New Hire packet with 2021 forms.
    • Replace W4 with 2021 W4 version (review the new 2021 form)
    • Ensure current Form I9 is being used (shows expiration date of 2022)
    • If used, update the DOL Healthcare Exchange form (mandated by ACA) with current group health insurance renewal information (contribution cost and eligibility) on page 2 of the form.
  2. Post the 2021 Florida Minimum Wage poster (effective 1/1/2021) (watch for news about the Florida Constitutional Amendment raising the minimum wage to $15 by 2026).
  3. Decide if the company will voluntarily extend the FFCRA COVID related paid benefits through March 31, 2021.  If yes, keep the FFCRA poster up and process eligible employees (and submit for tax credits); otherwise, take down FFCRA poster.
  4. Update Hiring process – After 1/1/21, keep copies of documents used for Form I9 completion, or sign up to use E-Verify (new FL law change)
  5. Handbook review and update
    • Employee count increase/decrease? Policy changes?
    • Update COVID safety guidelines to include CDC updates (i.e symptom-based return to work and reduced quarantine period.
  6. Review and update 2021 observed holiday schedule and post for employees.
  7. (If applicable) Add any final OSHA 300 log cases to the 2020 form, and prepare the OSHA 300A Summary for posting on February 1 through April 30.  Companies in higher hazard industries will also report summary case data via OSHA’s ITA website in March 2021.
  8. Construction companies should request new certificates of insurance forms from current subcontractors.  Sign up for the Florida Construction Policy tracker database (click new registration).
  9. (Voluntary) – send a copy of 2021 W4 to existing employees to see if they want to make any changes to federal tax withholding.
  10. Review I9 binder/folder and purge old I9s (retention rule is a minimum of 3 years of 1 year after termination, whatever is longer).

If you have questions or want help getting up to date, just give us a call at (727) 350-0370.

Contagious disease, Coronavirus, Department of Labor, Employee Policies, FFCRA, HR Compliance, IRS, Posters

Mandatory Paid COVID leave (FFCRA) Expires 12/31/20, Now Voluntary

On January 1, 2021, employers are no longer mandated to provide expanded paid COVID sick days and emergency family leave benefits that was put into place by the Family First Coronavirus Response Act (FFCRA). Covered employers (private employers with under 500 employees and public employers) have the option to voluntarily permit employees to use any unused FFCRA leave through March 31, 2021, and are still able to claim a corresponding payroll tax credit.

In March 2020, the FFCRA created the emergency paid sick leave (up to 80 hours) and the emergency family and medical leave expansion (partially paid leave for parents for school and child care closings). These leaves officially expire on December 31, 2020; and the new COVID relief bill passed by Congress did not add any new paid benefits, but did allow covered employers to voluntarily extend the use of the FFCRA benefits through March 31, 2021. Covered employers have these 2 options:

Option 1: Do not provide these voluntary benefits and take down the old FFCRA poster. Handle employee requests for leave and paid time off under standard company policies.

Option 2: Voluntarily provide extended FFCRA leave and claim a corresponding payroll tax credit for any leave taken through March 31, 2021. Keep the FFCRA poster up and communicate this to employees. If an employee has already exhausted their FFCRA sick leave (and/or 12 weeks of EFMLA), they are not eligible to receive any additional paid sick leave. However, if they still have some paid time still available, the employer can pay it (keeping appropriate documentation) and seek a payroll tax credit for the original allotment of FFCRA leave. If your company is covered by FMLA, and your 12 month FMLA leave period resets on January 1st (not look back or look forward), then an employee may be entitled to additional paid FMLA (final 10 weeks of the 12 week period) – but we are waiting for additional guidance from the Department of Labor (DOL) and the Internal Revenue Service (IRS) on this topic. More to read.

Americans with Disabilities Act, Coronavirus, EEOC, Employee Rights, HR Compliance, Reasonable Accomodation

Can Employers Require COVID-19 Vaccinations for Employees?

On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) issued guidance that allows for employer-mandated vaccines. According to the EEOC, employers may implement a mandatory vaccination policy because vaccines are not “medical examinations” under the Americans with Disabilities Act (ADA) – but a third-party administrator should administer the vaccine so that medical information gathered by the vaccine administrator – health screening questionnaire, etc.. – is not gathered by the employer. The EEOC says that “if a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination.” So, during the pandemic, employers can implement COVID-19 vaccine policies and require employees to be vaccinated as a condition to continued employment or, at the very least, as a condition to returning to the physical workplace. Mandatory vaccinations also trigger additional legal obligations.

Here are six (6) things to know about the EEOC’s Vaccine guidance.

  1. The EEOC recommends that employers should make COVID-19 vaccinations voluntary.
  2. The EEOC recommends that employers use third-party administrators (such as a medical clinic or pharmacy) to ask the medical screening questions before administering the COVID-19 vaccine (not the employer).  Employers considering implementing this policy must follow the restrictions and limits contained in the Genetic Information Nondiscrimination Act (GINA).  Under GINA, any pre-screening medical questionnaires completed by an employee to be vaccinated should be gathered by third parties (medical providers) because the disclosure of this information to an employer may trigger the ADA’s prohibition against asking disability related questions of employees.  Employers may ask disability related questions, but it needs to be job related and consistent with a business necessity.  Even if the pandemic creates a business necessity to require mandatory vaccines, this information creates future liability because knowledge of employee medical conditions can become an alleged motive in future employment actions.
  3. Proof of vaccinated status is not a medical examination or a disability-related inquiry.
  4. Employers should not ask an employee why they cannot receive the vaccine.
  5. Without proof of vaccinated status, an employer may prohibit an employee from returning to work if the company has a reasonable belief that the employee’s unvaccinated status poses a significant risk of substantial harm to the health or safety of the individual or others (i.e. direct threat).  Even in those cases, an employer is still required to reasonably accommodate an employee that cannot, or will not, be vaccinated.  The reasonable accommodation obligation stems from both the ADA (for employees that can’t get the vaccine due to medical issues) and Title VII of the Civil Rights Act of 1964 (for employees that refuse to take the vaccine for religious reasons).
  6. To determine a direct threat, employers must conduct an individualized assessment of four factors: (1) duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) imminence of the potential harm.  If an unvaccinated employee poses a direct threat, no adverse action can be taken against the employee until they have been offered a reasonable accommodation, or the accommodation causes undue hardship to the employer.  If a direct threat cannot be reduced to an acceptable level, an unvaccinated employee can be prevented from returning to the workplace.   This process shall be an individualized, interactive dialogue.
Compensation, Employment Poster, HR Compliance, Minimum Wage, Tipped Employees, Wage and Hour

Florida announces $8.65 Minimum Wage for 2021

On October 15, 2020, Florida announced the new minimum wage rate of $8.65 per hour for 2021. Florida’s minimum wage rate is adjusted annually to reflect changes in the cost of living. The minimum hourly rate for tipped employees in Florida will be $5.63 per hour in 2021.

Florida law requires the Florida Department of Economic Opportunity (DEO) to calculate a minimum wage rate each year. The annual calculation is based on the percentage increase in the federal Consumer Price Index for Urban Wage Earners and Clerical Workers in the South Region for the 12-month period prior to September 1, 2020.

Employers are required to conspicuously display the 2021 minimum wage poster in a location where employees can easily see it.  Download the poster (English, Spanish and Creole versions available) for FREE from the DEO webpage.

Coronavirus, HR Resources, Paycheck Protection Program, SBA

Important Updates about PPP Loan Forgiveness and Deadlines

In mid-October, the U.S. Small Business Administration (SBA) released two (2) important updates for businesses that received Paycheck Protection Program (PPP) loans.  The PPP provided 5.2 million loans worth $525 billion to American small businesses.

First,  is October 31, 2020, the deadline for borrowers to apply for PPP loan forgiveness? No. Q&A No. 4 in the General Loan Forgiveness FAQs section, the SBA explains that borrowers may submit a loan forgiveness application any time before the maturity date of the loan, which is either two or five years from the loan’s origination, depending on the borrower’s agreement. But the SBA also reminds borrowers that loan payments are deferred only until 10 months after the last day of each borrower’s loan forgiveness covered period.  There had been some confusion because the program’s loan forgiveness application forms (3508, 3508EZ, and 3508S) display an expiration date of “10/31/2020” in the upper-right corner.

Second, is there a new streamlined PPP forgiveness process for loans under $50,000? Yes. On October 8, the SBA released a simpler loan forgiveness application for small PPP borrowers with loans of $50,000 or less.  SBA and Treasury have also eased the burden on PPP lenders, allowing lenders to process forgiveness applications more swiftly.  SBA began approving PPP forgiveness applications and remitting forgiveness payments to PPP lenders for PPP borrowers on October 2, 2020.

Here is the simpler loan forgiveness application.

Instructions for completing the simpler loan forgiveness application.

 

 

Company Culture, Employee Handbook, Employee Recognition, Fractional HR, Human Resources, Performance Review

6 ways Small Businesses Improve Results by Investing in HR

Not every company needs to hire an HR professional, but every company needs to invest in its HR function. Without skilled and experienced human resources advice, small business owners can make expensive mistakes. In addition, HR can offer ownership proactive guidance and recommendation on ways to improve HR processes and procedures and shape and develop a workforce that maximizes results and profits. Unfortunately, many small companies do not realize the value of HR, and only make increased investments in HR after a traumatic workplace event (i.e. employee lawsuit, employee injury, failed customer audit, etc…). It only takes one bad hire, or one bad mistake, to eliminate the “it only happens to other companies” thinking.  As we work with our clients, we find that timely and affordable fractional HR services deliver the following positive results:

  1. Improve the hiring process – hiring should go beyond the proper hiring papers and an Indeed ad.  Small businesses often rush through the hiring process.  HR can help interview applicants, conduct proper screening and design a smooth onboarding process that can better retain employees. Developing a legally defensible hiring process will help avoid unnecessary risk.
  2. Develop written employment policies – using a canned Employee Handbook causes headaches.  HR knows how to develop written employment policies that minimize risk, contain costs and engage employees.  Determine what laws apply – equal employment, non-harassment, workplace violence, 90-day introductory period should all be addressed, regardless of company size.
  3. Discipline and termination coaching – managers and supervisors don’t like to write up employees for misconduct and poor performance.  HR can engage with supervisors early in the process and help ensure problems are properly documented.  A standard, consistent process (with documentation) will allow the company to take necessary employment actions, and protect against unmerited lawsuits.
  4. Improve employee feedback and communications –  business owners and CEOs are often too busy to provide effective coaching and feedback to all employees, especially when the company grows.  HR can assist in identifying and implementing a performance management process.  Whether paper-based, or technology-aided, a workable feedback system (based on budget and capabilities of the company) can fuel employee performance, and help achieve company goals and objectives.
  5. Locate HR related resources – by staying up to date with trends, HR can proactively identify products and HR service solutions that can help the company maintain compliance, improve performance and keep up with changes in business needs.  Performance review software, benefit compliance tools, text messaging apps, HR forms, self-service benefits, employee training, etc…
  6. Knowledge of Employment laws – HR can advise the company about the laws and regulations (over 20 major federal laws) that may relate to a situation and the company.  As companies grow, so do the laws impacting operations.  Federal and state laws need to be regularly reviewed and interpreted because they frequently change.  By consulting on situations that are small, HR will prevent them from becoming big problems.

So, why is it important for your small business to invest in HR?  Research shows that companies that invest in HR and concentrate on improving HR practices are able to improve overall market value.  So, engage professional HR advice and achieve lower voluntary turnover, new hires that are better matched to business needs, employees that are more satisfied with their employment – a more valuable business.

E-Verify, Employee Handbook, Employee Policies, HR Compliance, I9 Form, Immigration, USCIS

Publix Vendor Independent Third Party Immigration Reviews

Publix Super Markets, Inc. is celebrating its 90th Anniversary and has grown to over 1,200 stores across seven states.  If your company is trying to become a supplier of equipment or construction services with Publix, you will be expected to comply with all federal, state and local laws and regulations, including the regulations in the Immigration Reform and Control Act of 1986 (the law that established the mandate for obtaining an I9 form for all new hires).  We have been hired by many Florida companies that need to complete a required independent Annual Immigration Law Certification in order to stay in compliance with the Publix Supplier Agreement.  We will complete your Publix required immigration/I9 review in an affordable, time-sensitive manner.

Five (5) steps to complete an independent immigration review.  Consultstu follows a proven five (5) step approach to complete these Publix immigration reviews: (1) signed engagement memo and introductory call – we quote the fee, review the steps, identify the documents needed and timelines; (2) discuss pros/cons for an onsite or remote review; (3) send us the I9 forms, payroll data, employee data, company handbook/policies, E-verify documentation (if used) and other documentation using a secure file sharing option; (4) complete the audit report and recommendations – we provide you with specific feedback and directions on how to fix any errors and mistakes noted in the audit; and (5) conclude the audit and we send you a signed Immigration Law Certification and submit it to Publix officials.  Depending on company size, we may review all your I9 forms or a statistically significant number of I9 forms (for larger companies).

How quickly can it be completed?  After signing the engagement memo, our independent third-party audit can usually be completed in five to seven business days.  Sometimes, it may take a few extra days in order to complete I9 form corrections, depending on the availability of employees.  Our latest I9 review in September, for a Florida based equipment service company, was completed in about 10 business days.

How does your company benefit from completing an immigration law review? In addition to meeting the Publix supplier requirements, a completed third party immigration audit will also identify any missing or incomplete I9 forms and clarify company immigration-related responsibilities.  Identified errors can be corrected and that can potentially save your company thousands of dollars.  Immigration and Customs Enforcement (ICE) monetary penalties for technical paperwork violations range from $230 and $2,332.   Fines for “knowingly hire and continuing to employ” violations range from $573 to $4,586 for a first offense.  These fines are scheduled to increase every year.

Cannabidiol (CBD), Commercial Motor Vehicle Driver, DOT, Drivers, Drug Free Workplace, Florida rules, Medical Marijuana, Risk Management

Use CBD Products? Florida Drug-Free Workplace Implications

Will the use of CBD oils, lotions and pills cause a positive drug test under a Florida Drug-Free Workplace policy? CBD products are growing in popularity across Florida, and so is the potential risk that the inaccurate labeling of THC content in your CBD product will cause surprise drug test failures for employees and applicants. Here is what you need to know.

What is CBD? Cannabidiol (CBD) products are all the rage.  According to an article on Webmd, cannabidiol is extracted from the flowers and buds of marijuana or hemp plants.  Marijuana’s “high” is caused by the chemical tetrahydrocannabinol (THC).  CBD does not produce intoxication due to low THC content.  CBD is credited with treating a host of medical problems, from epilepsy to anxiety to inflammation.

What are the Florida rules on CBD?  In just the past year or so, CBD infused products have expanded quickly across Florida.  Commercial hemp production was legalized in the 2018 federal Farm Bill, signed by Trump, and Florida created the state’s hemp program in 2019 (Florida Statute 581.217), with regulations for hemp extract products found in Florida Admin Rule 5K-4.034.  The U.S. government and Florida statute defines hemp as any crop of cannabis containing 0.3% THC or less in dry weight.  Retail hemp products, such as oils, lotions, vaping cartridges, pills, etc… can be legally purchased in retail stores, but the accuracy of their labeling and CBD ingredients may vary widely.  In fact, a 2017 study found that about seven out of 10 CBD products did not contain the amount of cannabidiol stated on the label. And about one in five contained higher levels of THC.

CBD and Drug Testing. If an applicant fails a pre-employment drug test and explains that he/she uses CBD oil (and gives you a label for a product), does this mean he/she passes the drug test?  No.  Various medical studies have found that the use of pure CBD should not cause a person to fail a drug test.  However, if the THC concentration exceeds the federal and state regulation by even a small margin, employment and criminal justice drug urine drug testing can be impacted.  People who use legal hemp products repeatedly may accumulate THC and is metabolites. Employees should be aware that the use of CBD, even though legal, may cause an unexpected positive result on a drug test.  Florida’s drug-free workplace statute does not provide any accommodation for THC that may be due to CBD, versus marijuana use.  If the initial immunoassay testing (and later confirmatory testing) show metabolites above the level limit, the result is reported positive for THC.  Florida Medical Review Officers (MROs) will report the drug test result as positive (if it exceeds the applicable Florida nanogram levels for THC – which is 50 ng/mL for initial rapid tests and 15 ng/mL for GC/MC confirmatory testing) and the use of CBD products is not a valid excuse under the Florida statute.

CDL Drivers and CBD. Based on the rise in CBD popularity, in 2019, the Department of Transportation (DOT) issued guidance to regulated employees (CDL drivers, pilots, school bus drivers, train engineers, ship captains etc…) in a Drug and Alcohol Policy and Compliance Notice.  DOT tests for marijuana (not CBD), but the labeling of many CBD products may be misleading because the products could contain higher levels of THC than what the product label states.  CBD use is not a legitimate medical explanation for a laboratory-confirmed marijuana positive result.  A Medical Review Officer (MRO) will verify a drug test confirmed at the appropriate cutoffs as positive, even if an employee claims they only used a CBD product.

Contagious disease, Coronavirus, Department of Labor, Employee benefits, Employee Rights, FFCRA, Paid Leave

DOL Revises Regulations for the Families First Coronavirus Response Act

Effective September 16, 2020, the Department of Labor (DOL) announced the release of revised regulations under the Families First Coronavirus Response Act (FFCRA). The revised regulations came after a New York court decision invalidated several parts of the FFCRA’s rules. The new, updated regulations did not change too much for non-healthcare employers, but here is what you need to know about the changes.

First, DOL reaffirmed when paid sick leave days and emergency FMLA leave is available to employees. The new regulations confirm that paid benefits are available only if the employer has work available from which an employee can take leave. So, employees that are laid off or on furlough, are not eligible for these benefits. Said in other words, an employee can take paid sick leave and expanded family and medical leave only when the qualifying reason is the reason for his/her inability to work. Work must be available, but employers may not arbitrarily withhold work just to avoid having to provide these benefits.

Second, DOL advises that intermittent leave under the Emergency FMLA leave can only be taken with the approval of the employer.  However, they clarified what intermittent means for employees that have school that offers a hybrid schedule – some days in school and some days remote.  The DOL clarified that when the child’s school or place of care is closed, each closed day constitutes a new and separate reason for FFCRA.  So, when schools open and close repeatedly (hybrid model), each single day is not considered intermittent, and the employee does not need the employer’s consent to take off on the days that school or childcare is closed.

Third, the exemption for health care providers was adjusted.  Originally, health care providers were able to assert an exemption from offering FFCRA benefits to their employees based on their status as a health care provider. The DOL amended the definition of “health care provider” to focus the definition on position-specific roles and limited the exemption to employees that have duties and capabilities that are directly related to the providing of health care services, or are so integrated to the services so as to adversely impact patient care if not provided.  So, health care providers do not have a blanket exemption to the FFCRA benefits, but the exemption may be asserted for critical employees performing diagnostic, preventative and treatment services, or other services integrated with and necessary to patient care.  The regulations provide additional definitions for diagnostic, preventative, treatment and integrated terms, to give employers more guidance (and a list of types of employees that probably meet the test).

Lastly, DOL updated and relaxed the timeline for when employees need to give an employer notice of the need for leave, as well as when supporting documentation must be submitted.  Rather than requiring the notice and supporting documentation before the leave begins, the regulations now use “as soon as practicable” and that in most cases this will be when an employee provides notice of the need for FFCRA leave.   For employees needing emergency FMLA for childcare or school closing that is foreseeable, they must provide advance notice before taking leave.  While the original regulations state that an employer may not require that the notice include documentation beyond what is allowed in the FFCRA, it also states that employees are expected to comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.  Read all the DOL Frequently Asked Questions (FAQs) here.

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

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

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

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

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

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

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

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

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

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