New CDC Guidance Makes Contact Tracing More Difficult for Employers

October 27 - Posted at 2:38 PM Tagged: , , , , ,

Employers will have to revise their COVID-19-related safety policies and practices to meet new guidelines from the U.S. Centers for Disease Control and Prevention (CDC) on what it means to have been in “close contact” with an infected person.

Under prior guidance, the CDC defined a close contact as someone who spent at least 15 consecutive minutes within six feet of an infected person, thus putting the individual at higher risk of contracting the virus.

The CDC updated its guidance to define a close contact as:

Someone who was within six feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period starting from two days before illness onset (or, for asymptomatic patients, two days prior to test specimen collection) until the time the patient is isolated.

“We are now looking at cumulative rather than consecutive,” said Jonathan A. Segal, an attorney with Duane Morris in Philadelphia. So a person who was exposed three times in a 24-hour period—for five minutes during each encounter—would meet the definition.

“This broader definition most likely will have a big impact on schools, hospitals and workplaces where individuals have several separate interactions with others—totaling 15 minutes or more—over the course of a day,” said Catherine Burgett, an attorney with Frost Brown Todd in Columbus, Ohio.

What should employers do in light of the new guidelines? “Revise your current policies and forms based on the new definition of close contact and … wear a mask,” Burgett said.

Taking Action

An important consequence of this revision is the impact it will have on employers’ ability to maintain staffing because it establishes a much lower threshold trigger for required quarantine.

Employers should have infected employees identify others who worked within six feet of them, for 15 minutes or more, within the 48 hours prior to the sick individual showing symptoms. This is being called this the “6-15-48 analysis.”

This new guidance will make contact tracing using the CDC’s 6-15-48 analysis even more difficult. When determining whether an employee has been exposed to an infected worker for 15 minutes or more, employers will now need to look at brief interactions between employees and infected workers that may occur several times a day, instead of one or two prolonged exposures.

The CDC advises most employers to send home any employees who have had a risk of exposure under this analysis. Those employees should maintain social distancing and self-monitor for 14 days from the exposure.

All industries will be impacted, but the most significant impact will be to those businesses that are not considered to be critical infrastructure workplaces. Those businesses will find that more employees will be required to be quarantined under this new rule, and thus will have fewer employees available to work in their facilities.

If a business is considered essential, however, CDC guidelines say exposed employees can continue to work onsite while self-monitoring and wearing a face mask. Employers that are considered critical infrastructure will be less impacted, because even their directly exposed employees can still work, as long as they are asymptomatic and the company takes the steps required by the CDC.

Revising Policies

As a result of the new definition of close contact, employers should review their COVID-19-related infection-control plans with this new definition in mind and, at a minimum, update their contact-tracing questionnaires.

Instead of simply asking infected workers who they were near for a prolonged period of time, employers may want to view surveillance video, documents that show when an employee clocked in and out, and other items that will help determine workers’ interactions.

Employers may also want to consider obtaining a waiver from the infected worker in order to share his or her diagnosis. This will allow the employer to interview employees about their interactions with the worker to determine who was exposed to the infected individual.

IRS announces relief for certain Form 1094/1095 reporting requirements

October 22 - Posted at 9:08 AM Tagged: , , , , , , ,

The IRS has issued relief from certain Form 1094-C and 1095-C reporting requirements under the Affordable Care Act relating to employee health plans, as well as relief from certain reporting-related penalties.

As a refresher, the ACA generally requires four forms to be produced each year, and the names are anything but intuitive:

  • Form 1094-B: This is essentially a transmittal form used by insurance carriers to report the individual statements (Form 1095-B) to the IRS
  • Form 1095-B: This form is used to report certain statutorily-required information to the employee under a fully-insured policy about his or her coverage.
  • Form 1094-C: This is used by applicable large employers (“ALEs”) to report whether the employer offered minimum essential coverage and to transmit the employee statements (Form 1095-C) to the IRS.
  • Form 1095-C: Finally, this form is used by ALEs to report certain statutory-required information to employees about their employer-sponsored health coverage.

Which form your plan would be required to file or furnish depends on whether you are an ALE, and how you fill out the form and whether you offer fully insured or self-insured coverage. 

Extended deadline for participant statements

The IRS has extended the deadline for furnishing Forms 1095-B and 1095-C to individuals. The typical deadline to report 2020 plan information is January 31, 2021. However, the new relief extends the deadline to March 2, 2021. The extension is automatic, and the IRS has indicated that no further extensions will be granted, and it will not respond to such requests.

No extension for IRS filings

Be aware that this extension does not apply to the 1094-B and 1094-C filings with the IRS. The deadline for submitting these filings to the IRS will remain March 1, 2021 (since the original due date of February 28 falls on a Sunday), for paper filings and March 31, 2021, for those filing electronically. However, while the automatic extension does not apply to these deadlines, filers may still request an extension from the IRS.

Penalty relief

Recognizing that the main purpose of Forms 1095-B and 1095-C was to allow an individual to compute his or her tax liability relating to the individual mandate, and because the individual mandate has been reduced to zero, the IRS has granted relief from furnishing certain documents to individuals.

The IRS indicated that it will not assess penalties for failure to furnish a Form 1095-B if two conditions are met. First, the reporting entity must post a prominent notice on its website stating that individuals may receive a copy of their 2020 Form 1095-B upon request, along with an email address, physical address, and phone number. Second, the reporting entity must furnish the 2020 Form 1095-B to the responsible individual within 30 days of receipt of the request. The statements may be furnished electronically if certain additional requirements are met.

The same reporting relief does not extend to ALEs that are required to furnish Form 1095-C. This form must continue to be furnished to full-time employees, and penalties will continue to be assessed for a failure to furnish Form 1095-C. However, the relief does generally apply to furnishing the Form 1095-C to participants who were not full-time employees for any month of 2019 if the requirements above are met. This would typically include part-time employees, COBRA continuees, or retirees.

Note that while these requirements for furnishing the 1095-B and 1095-C to individuals has been modified, these forms must still be transmitted to the IRS along with their Form 1094 counterparts.

Good-faith relief for errors in reporting

In the final piece of good news from the IRS, it announced relief from penalties for incorrect or incomplete information on any of these forms. This relief applies to both missing and inaccurate taxpayer identification numbers and birthdays, as well as other required information.

The reporting entity must be able to show that it made a good faith effort to comply with the reporting requirements. A successful showing of good faith will show that an employer made reasonable efforts to prepare for the reporting requirements and the furnishing to employees, such as gathering and transmitting the necessary information to the person preparing the forms.

However, the relief does not apply to reporting entities that completely fail to file or furnish the forms at all.

Finally, and importantly, the IRS has indicated that this will be the last year that it will provide this good faith reporting relief.

Oct. 15th Deadline Nears for Medicare Part D Coverage Notices

September 28 - Posted at 9:30 AM Tagged: , , ,

Prior to each year’s Medicare Part D annual enrollment period, plan sponsors that offer prescription drug coverage must provide notices of creditable or noncreditable coverage to Medicare-eligible individuals.

The required notices may be provided in annual enrollment materials, separate mailings or electronically. Whether plan sponsors use the federal Centers for Medicare & Medicaid Services (CMS) model notices or other notices that meet prescribed standards, they must provide the required disclosures no later than Oct. 15, 2019.

Group health plan sponsors that provide prescription drug coverage to Medicare Part D-eligible individuals must also disclose annually to the CMS—generally, by March 1—whether the coverage is creditable or noncreditable. The disclosure obligation applies to all plan sponsors that provide prescription drug coverage, even those that do not offer prescription drug coverage to retirees.

Background

The Medicare Prescription Drug, Improvement, and Modernization Act of 2003 requires group health plan sponsors that provide prescription drug coverage to disclose annually to individuals eligible for Medicare Part D whether the plan’s coverage is “creditable” or “noncreditable.” Prescription drug coverage is creditable when it is at least actuarially equivalent to Medicare’s standard Part D coverage and noncreditable when it does not provide, on average, as much coverage as Medicare’s standard Part D plan. The CMS has provided a Creditable Coverage Simplified Determination method that plan sponsors can use to determine if a plan provides creditable coverage.

Disclosure of whether their prescription drug coverage is creditable allows individuals to make informed decisions about whether to remain in their current prescription drug plan or enroll in Medicare Part D during the Part D annual enrollment period. Individuals who do not enroll in Medicare Part D during their initial enrollment period (IEP), and who subsequently go at least 63 consecutive days without creditable coverage (e.g., they dropped their creditable coverage or have non-creditable coverage) generally will pay higher premiums if they enroll in a Medicare drug plan at a later date.

Who Gets the Notices?

Notices must be provided to all Part D eligible individuals who are covered under, or eligible for, the employer’s prescription drug plan—regardless of whether the coverage is primary or secondary to Medicare Part D. “Part D eligible individuals” are generally age 65 and older or under age 65 and disabled, and include active employees and their dependents, COBRA participants and their dependents, and retirees and their dependents.

Because the notices advise plan participants whether their prescription drug coverage is creditable or noncreditable, no notice is required when prescription drug coverage is not offered.

Also, employers that provide prescription drug coverage through a Medicare Part D Employer Group Waiver Plan (EGWP) are not required to provide the creditable coverage notice to individuals who are eligible for the EGWP.

Notice Requirements

The Medicare Part D annual enrollment period runs from Oct. 15 to Dec. 7. Each year, before the enrollment period begins (i.e., by Oct. 14), plan sponsors must notify Part D eligible individuals whether their prescription drug coverage is creditable or non-creditable. The Oct. 14 deadline applies to insured and self-funded plans, regardless of plan size, employer size or grandfathered status

Part D eligible individuals must be given notices of the creditable or non-creditable status of their prescription drug coverage:

  • Before an individual’s IEP for Part D.
  • Before the effective date of coverage for any Medicare-eligible individual who joins an employer plan.
  • Whenever prescription drug coverage ends or creditable coverage status changes.
  • Upon the individual’s request.

According to CMS, the requirement to provide the notice prior to an individual’s IEP will also be satisfied as long as the notice is provided to all plan participants each year before the beginning of the Medicare Part D annual enrollment period.

Model notices that can be used to satisfy creditable/non-creditable coverage disclosure requirements are available in both English and Spanish on the CMS website. Plan sponsors that choose not to use the model disclosure notices must provide notices that meet prescribed content standards.

Notices of creditable/non-creditable coverage may be included in annual enrollment materials, sent in separate mailings or delivered electronically. Plan sponsors may provide electronic notice to plan participants who have regular work-related computer access to the sponsor’s electronic information system. However, plan sponsors that use this disclosure method must inform participants that they are responsible for providing notices to any Medicare-eligible dependents covered under the group health plan.

Electronic notice may also be provided to employees who do not have regular work-related computer access to the plan sponsor’s electronic information system and to retirees or COBRA qualified beneficiaries, but only with a valid email address and their prior consent. Before individuals can effectively consent, they must be informed of the right to receive a paper copy, how to withdraw consent, how to update address information, and any hardware/software requirements to access and save the disclosure. In addition to emailing the notice to the individual, the sponsor must also post the notice (if not personalized) on its website.

In Closing

Plan sponsors that offer prescription drug coverage will have to determine whether their drug plan’s coverage satisfies CMS’s creditable coverage standard and provide appropriate creditable/noncreditable coverage disclosures to Medicare-eligible individuals no later than Oct. 15, 2020.

DOL Revises COVID-19 Leave Regulations

September 14 - Posted at 1:37 PM Tagged: , , , , , , , , , , , ,

Employers of healthcare providers will soon be required to provide paid sick leave and partially paid family leave to a broader category of employees, and all employers subject to the law now have clarification on a number of other obligations, thanks to a revised set of regulations released by the Labor Department late Friday afternoon. After a federal court judge recently knocked down the agency’s first attempt to provide employers with practical direction in complying with the Families First Coronavirus Act (FFCRA), the Labor Department issued a second set of rules on September 11 that in some instances revise and in other instances clarify employer compliance duties. Here are the key changes and clarifications, which are slated to go into effect on September 16, that employers need to know about:

  1. The definition of workers deemed “health care providers” – whose employers may exclude them from coverage under the law – was narrowed to only include employees who are health care providers under the Family Medical Leave Act (FMLA) and those providing diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.
  2. The agency reaffirmed that leave can only be taken only if the employee has work available from which to take leave.
  3. Employees must still obtain their employer’s approval to take leave on an intermittent basis.
  4. Employees must give their employer information to support their need for leave as soon as practicable.
  5. The Labor Department revised the rules to correct an inconsistency regarding when an employee may be required to give notice of family and medical leave to their employer.
(more…)

Important Payroll Tax Holiday Beginning 9/1/2020

September 01 - Posted at 9:18 AM Tagged: , , ,

Three weeks ago many of your employees started inquiring about when you were going to stop taking their payroll taxes out and you likely told them you were awaiting guidance and nothing would happen until September 1st.  Guess what?? It’s September 1st and employees are starting to ask again.  The big picture they need to know is that it’s a temporary delay not a permanent cut. 

Late Friday (8/28), the Department of Treasury released some guidance.  Many questions remain unanswered, like, can we simply decline to participate in the deferral or what if an employee leaves before they’ve repaid the deferred taxes?  The guidance doesn’t provide us an option to not participate and states the employer “may make arrangements to otherwise collect the total Applicable Taxes from the employee”….. which means they’ve never tried to collect money from a terminated employee!  

That being said, we will do the best we can with the information provided thus far.  Most employees don’t understand that this is a deferral or delay of taxes, not a permanent cut, for employees making $104,000 or less annually. All delayed taxes would need to be repaid by the end of April 2021.  Meaning, while most employees would have the chance to get a 6.2% boost in their paychecks for the last 4 months of this year, this could cause them to get slammed with a 12.4% withholding for the first 4 months of 2021.  The concern is that once employees get accustomed to the increase in pay, the double down approach to collect at the beginning of the new year may cause them undue financial stress.    

The tax deferral has the potential to cause more aggravation and confusion among staff than its worth, so we recommend the opt out approach.  The guidance doesn’t provide employers the option to not offer to their employees and we know plaintiffs’ attorneys are always looking to make a quick buck, so we recommend providing employees with the information and let them make an informed decision.      

We have drafted a sample letter that you may wish to share with staff to explain the deferral and requires them to complete and sign paperwork to defer their tax for the remainder of 2020. The letter also states that nothing will change on their withholding unless they choose to opt in to the tax holiday.  Please contact our office if you would like a copy of this sample letter. 

How To Balance School Re-Openings And COVID-19 Workplace Leave: FAQs For Employers

August 28 - Posted at 11:00 AM Tagged: , , , , , , , , , ,

As the summer draws to a close, schools are announcing their re-opening plans, which vary widely across states and localities. Some schools plan to remain open several days a week and direct students to attend remotely the other days. Others will split classes into morning and afternoon sessions, allowing students attending in the morning to participate remotely at home for the rest of day and vice versa. Still others will require physical attendance at all times, while some will choose to operate entirely under a remote learning model.

In light of these different reopening plans, employers need to understand how the Families First Coronavirus Response Act (FFCRA) affects the leave rights of employees for each of these different types of school schedules. The below serves as a list of answers to frequently asked questions related to the issues you could face as schools begin to reopen.  

The Basics: FFCRA Leave Benefits For Working Parents

Under the FFCRA, eligible employees are entitled to Emergency Paid Sick Leave (EPSL) and/or expanded family and medical leave (EFML) if they are unable to work or telework because they need to care for their son or daughter if (a) the child’s school or place of care is closed, or (b) the child care provider is unavailable, due to COVID-19-related reasons. The FFCRA regulations provide that an employee may take leave to care for their child only when the employee needs to, and actually is, caring for the child. The Department of Labor (DOL) has advised that “generally, an employee does not need to take such leave if another suitable individual — such as a co-parent, co-guardian, or the usual child care provider — is available to provide the care the employee’s child needs.”

Frequently Asked Questions

1. Is a child’s school or place of care deemed “closed” for purposes of the FFCRA if it has moved to online instruction or to another model in which children are required to complete assignments at home?
Yes. If the physical location where an employee’s child received instruction or care is closed, the school or place of care is deemed “closed” for purposes of the EPSL and EFML. The DOL has instructed that this is true even if some or all instruction is being provided online or whether, through another format such as “distance learning,” the child is still expected or required to complete assignments. But this seemingly does not contemplate a hybrid model (discussed below) and likely pertains only to those circumstances where the child is not reporting to a physical location. Also note that in order to be eligible for FFCRA leave, employees must still certify that there is no other suitable person that can care for the child.

2. Is an employee entitled to FFCRA leave if they choose to keep the child at home or have the child homeschooled even though the child’s school is open?
No. The DOL has stated that employees do not need to take leave if their usual child care provider is available to provide care. But if the school is operating on a reduced capacity due to COVID-19, which then necessitates remote learning for the child, FFCRA leave could be available. See DOL guidance on summer camps

3. Would an employee qualify for FFCRA leave if their child’s school is open but the employee chooses remote learning based on a doctor’s recommendation due to the child’s vulnerability to COVID-19?
EFMLA is likely not available to the employee because the child’s school is not closed. The employee might be eligible for EPSL if they can demonstrate that they are taking leave to care for a person who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19 (permitted reason #4 under EPSL). It is unclear however, whether a recommendation for remote learning is the same as a recommended self-quarantine for purposes of the FFCRA.

4. Will employees be eligible for FFCRA leave if a child’s school is operating on a hybrid model (whereby children are to alternate between physical attendance and remote learning)?
Likely yes. While this scenario is not specifically addressed in the statute or DOL guidance, one would argue that the child’s school is technically “closed” to that child on the days when the child is required to participate via remote learning. Thus, if the employee cannot work or telework during those days, they should qualify for FFCRA leave.

It is uncertain, however, whether a parent may take the leave consecutively or intermittently to coincide with the days and times the child is home remote learning. If the child’s school requires them to attend school daily (e.g., child attends school half of the day and spends the other half remote learning), leave is likely to be taken consecutively. If, on the other hand, the child’s schedule requires the child to physically attend school only on certain days of the week, leave is likely to be taken intermittently. Note that while the DOL regulations mandate employer consent for intermittent leave, a New York federal court recently struck out this requirement as unreasonable.

5. Would an employee qualify for FFCRA leave if the child’s school is open but the child’s before or after school program is closed?
Yes. The DOL defines a “place of care” as a physical location in which care is provided for the child. The physical location does not need to be solely dedicated to such care. Examples include day care facilities, preschools, before and after school care programs, schools, homes, summer camps, summer enrichment programs, and respite care programs.

6. Can an employer deny FFCRA leave to an employee who previously teleworked while the child’s school was closed but intends to request leave if the child’s school remains closed for the fall?
No. The DOL has made clear that simply because an employee has been teleworking despite having their children at home does not mean the employee is prevented from now taking leave to care for the child whose school is closed for a COVID-19-related reason.

7. Can more than one parent take paid sick leave or expanded family and medical leave simultaneously to care for a child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons?
No. An employee may take EPSL or EFML leave to care for their child only when they need to, and actually are, caring for the child if they are unable to work or telework as a result of providing care. Generally, employees do not need to take such leave if a co-parent, co-guardian, or the usual child care provider is available to provide the care the child needs.

8. Can an employee take paid FFCRA leave to care for a child who is 18 years old or older?
It depends. EPSL and EFML leave may only be taken to care for an employee’s non-disabled child if they are under the age of 18. If the employee’s child is 18 years of age or older with a disability and cannot care for themselves due to that disability, the employee may take EPSL and EFML leave to care for the child if their school or place of care is closed or the child care provider is unavailable due to COVID-19-related reasons and the employee is unable to work or telework as a result. Additionally, EPSL is available to care for an individual who is subject to a federal, state, or local quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19. If an employee has a need to care for a child age 18 or older who needs care for these circumstances, the employee may take EPSL if they are unable to work or telework as a result of providing care. But in no event may the employee’s total paid sick leave exceed two weeks.

9. Can an employee use EPSL for child care purposes if the employee already used up their 80 hours of EPSL for other permitted purposes?
No. The DOL regulations state that employees are entitled to only a one-time use of 80 hours of EPSL, regardless of the reason. However, if an employee has not exhausted their full EPSL allotment, they may use the remaining time for other permitted reasons.

10. If a new employee has used up their EPSL leave allotment while employed at their previous employer, are they entitled to another 80 hours of EPSL leave with the new employer?
No. The DOL regulations specify that any person is limited to a total of 80 hours of EPSL. An employee who has taken all such leave and then changes employers is not entitled to additional EPSL from their new employer. However, an employee who has taken some (but fewer than 80 hours of) EPSL and then changes employers is entitled to the remaining portion of such leave from their new employer, but only if the new employer is covered by the FFCRA.

11. Can employees use EFML leave if they have already exhausted all of their FMLA leave allotment for the benefit year?
No. An employee may only take a total of 12 workweeks for FMLA or EFMLA reasons during the employer’s designated benefit year.

12. Does EFML contain the same limitation contained in the FMLA that requires spouses who work for the same employer to share the 12 weeks of leave (instead of each getting 12 weeks)?
No. Under 29 CFR 201(b), spouses who work for the same employer can be required to share a combined 12 weeks of FMLA leave to bond with their new child or care for their own parent with a serious health condition. The EFMLA does not provide for the same carveout. But keep in mind that while both employees who work for the same employer would each be eligible for EFMLA leave, they would likely not be able to both take leave to care for their child since they have to certify that there is not alternative suitable caregiver. 

13. What supporting documents must employees provide to their employers for FFCRA purposes?
When requesting EPSL or EFML leave, employees must provide the following information to their employers, either orally or in writing:

  • Employee’s name;
  • The date(s) for which employee requests leave;
  • The reason for leave; and
  • A statement that the employee is unable to work because of a FFCRA qualifying reason.

If the employee requests leave because they are subject to a quarantine or isolation order or to care for an individual subject to such an order, they should additionally provide the name of the government entity that issued the order. If the employee requests leave to self-quarantine based on the advice of a health care provider or to care for an individual who is self-quarantining based on such advice, they should also provide the name of the health care provider who gave the advice.

If the employee requests leave to care for a child whose school or place of care is closed, or child care provider is unavailable, they must also provide:

  • The name of the child;
  • The name of the school, place of care, or child care provider that has closed or become unavailable; and
  • A statement that no other suitable person is available to care for the child.

Notably, a New York federal court recently held that supporting documentation may not be required as a precondition for FFCRA leave. Thus, employers should ensure documentation is not required to commence the leave under the FFCRA. Supporting documentation can be submitted after the leave has commenced.

Labor Department Issues Guidance On Tracking Employees’ Teleworking Hours

August 27 - Posted at 11:27 AM Tagged: , , , , , ,

The U.S. Department of Labor just released a Field Assistance Bulletin (FAB) to provide employers with guidance regarding their wage and hour obligations to track the hours of employees working remotely or teleworking. Importantly, while the August 24 FAB directly speaks to employers’ Fair Labor Standards Act (FLSA) requirements under remote work arrangements that have arisen amid COVID-19, it also applies to all other telework or remote work arrangements. This guidance may be especially useful to employers who are new to the remote work world.

The Basics: What Does Federal Law Require?

As a reminder, the FLSA requires that an employer compensate employees for all hours it “suffers or permits” them to work. This means that employees must be compensated for time that may be unscheduled, but during which the employee still performs work. Thus, if an employer knows or has reason to believe that work is being performed, the time must be counted as hours worked. 

A challenge for employers is preventing work that it does not want performed. Notably, the employer cannot rely exclusively on its stated policy. Indeed, the guidance notes that it is not easy to define when an employer “has reason to believe that work is being performed.” The FAB reinforces that employers are not required to compensate employees for work they do not know about and have no reason to know about. 

New Challenges Raised By Remote Work

Rather, employers are only required to compensate employees for hours worked that are based on “actual knowledge” or “constructive knowledge” of that work. Employers will be deemed to have “actual knowledge” of employees’ regularly scheduled hours and through employee reports or other notification “actual knowledge” of the hours worked. Employers might be deemed to have “constructive knowledge” if it could have acquired information regarding additional work done through the exercise of “reasonable diligence.” 

Importantly, the FAB clarifies that “reasonable diligence” is limited to what the employer should have known, not what it “could have known.” This means employers are not necessarily required to “cross-reference” phone records or otherwise review other non-payroll records to determine whether or not employees were working beyond their scheduled hours, especially during these remote work times. 

What Should Employers Do?

Instead, you should provide employees with a process and procedure to report hours worked, particularly to ensure that unscheduled hours also are recorded. If the employee fails to utilize the process or procedure, you might be able to make an argument that the employee has prevented you from satisfying your obligation to compensate employees and thwarted your efforts to prevent unwanted work. Thus, you may be able to avoid FLSA liability for failing to compensate employees for work performed that you did not know about and that the employee didn’t advise you about. 

You should review your remote work and telework policies to ensure that they provide clear guidance to employees about your expectations regarding schedules and working hours. You should also implement a policy or procedure by which employees can report work that was performed outside their regularly scheduled time frames or their recorded hours.

Conclusion

Overall, you should exercise reasonable diligence to ensure that you capture all hours worked (whether scheduled or not, just as they must for employees working onsite). But you can take some solace in the USDOL’s guidance reminding us all that “constructive knowledge” is not without limits.

4 Common COVID-19 Misunderstandings That Could Place Your Company At Legal Risk

August 23 - Posted at 12:23 PM Tagged: , , , , , , , , ,

Throughout the COVID-19 pandemic, the Centers for Disease Control and Prevention has issued constantly changing guidance for employers that many view as complex, confusing, and impractical. In its perplexing web of guidelines, the CDC recommends that companies take several actions to protect workers from contracting COVID-19, like self-isolating sick employees, quarantining exposed employees, screening employees for symptoms prior to work, and installing partitions to protect public-facing employees.

Given their complexity, some of these directives are often not fully understood by companies. Further complicating matters, many of the recommendations have never been previously undertaken by employers, leading to misapplication. Worst of all, other guidelines are simply not feasible for some employers, leaving them with the tough decision of not following the CDC directive in order to stay in business.

Unfortunately, ignoring or misunderstanding these confusing guidelines, like the four commonly misinterpreted guidance listed below, could lead to legal risks for your company.

1. Returning Exposed Employees To Work Too Early After A Negative Test

Of the innumerable companies that have sought our assistance during the COVID-19 pandemic, the most common misunderstanding of CDC guidance we see involves returning to work employees who have been directly exposed to COVID-19 too early following a negative test. Employers falling under the CDC’s general business guidance (not critical infrastructure employers) should quarantine employees for 14 days since their last direct exposure to a confirmed or suspected COVID-19 case, defined as being within 6 feet of the infected person, for 15 minutes or more, within the 48 hours prior to the sick individual showing symptoms, until the infected person is released from self-isolation (“6-15-48”).

Critically, the 14-day quarantine period cannot be cut short by a negative test due to the lengthy incubation period of COVID-19. This is an often-misunderstood CDC guideline, which even the agency has recognized:

Note that recommendations for discontinuing isolation in persons known to be infected with SARS-CoV-2 could, in some circumstances, appear to conflict with recommendations on when to discontinue quarantine for persons known to have been exposed to SARS-CoV-2. CDC recommends 14 days of quarantine after exposure based on the time it takes to develop illness if infected. Thus, it is possible that a person known to be infected could leave isolation earlier than a person who is quarantined because of the possibility they are infected.

Thus, an exposed employee cannot return to work during the 14-day quarantine period following a negative COVID-19 test received on, for example, day three, seven, or 12 of that period. Returning exposed employees too early due to a negative test could lead to preventable COVID-19 infections if co-workers are exposed to individuals who should be quarantined and develop the virus after a negative test.

2. Miscalculating The Appropriate Quarantine Period For Those Exposed To An Infected Household Member

Along those same lines, employers often misunderstand CDC guidance when calculating the length of the quarantine period for a worker who has been exposed to an infected spouse or household member. The key here is that the 14-day quarantine period does not begin until the last day the employee was directly exposed, using the 6-15-48 analysis above, to the spouse or household member prior to the infected person being released from self-isolation. Thus, if the employee is directly exposed to the spouse or household member on days one through 10, the quarantine period does not begin until day 10.

Accordingly, the worker may ultimately miss 24 days of work, instead of 14, if directly exposed to the spouse or household member every day until the spouse is released from self-isolation. The CDC addresses this confusing guidance here, noting that the exposed employee should stay home until 14 days have elapsed after the last exposure.

3. Not Notifying Employees Of A Confirmed COVID-19 Case In Your Workplace

The Fisher Phillips COVID-19 litigation tracker has been following closely the number of lawsuits filed with COVID-19-related claims. The prevalence of claims relating to an employer’s failure to notify employees of a confirmed case of COVID-19 in the workplace is a troubling trend. Throughout the pandemic, transparency by employers has been a critical tool in maintaining positive employee morale. Failure to do so can lead to negative consequences, including not only lawsuits, but Occupational Safety and Health Administration (OSHA) complaints and employees refusing to work, as well.

Although it may not be clear to some employers, the CDC recommends not only informing directly exposed employees (6-15-48) of a confirmed COVID-19 case in the workplace, but also to inform other “employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the Americans with Disabilities Act (ADA).” The CDC defines “possible exposure” to COVID-19 as those who do not meet the 6-15-48 parameters. Thus, when a confirmed COVID-19 case occurs in your workplace, remember to inform those employees who worked near the infected worker (e.g., the same hallway, area, or corridor), even though they weren’t directly exposed.

4. Incorrectly Believing That Wearing Face Coverings Trumps The 6-15-48 Analysis

When analyzing whether an employee has been exposed to an infected co-worker, employers often misconstrue the impact of wearing face coverings to prevent the spread of the virus. Although the CDC recommends wearing masks to slow the spread of COVID-19, whether employees are wearing masks while directly exposed (6-15-48) to an infected person does not change that analysis. The determination of whether someone should be quarantined for 14 days does not change if the individuals at issue are wearing masks, another point of confusion specifically clarified by the CDC:

Note: This is irrespective of whether the person with COVID-19 or the contact was wearing a mask or whether the contact was wearing respiratory personal protective equipment (PPE).

To ensure the safety of your workers, remember to quarantine all employees who meet the 6-15-48 analysis, even if they were wearing a face covering while exposed.

Legal Risks For Not Following CDC Guidelines

Although CDC guidance is not a law or regulation, such guidelines can be construed by OSHA and the courts as the legal standard that defines what actions a company should take to protect its workers during this unprecedented time. In fact, the Assistant Secretary for the U.S. Department of Labor has already indicated that OSHA could rely upon the general duty clause, which the agency can enforce in the absence of a standard on point, to enforce the CDC’s guidelines for employers on COVID-19.

If your company fails to follow a CDC guideline, it could receive a citation under OSHA’s general duty clause and, if classified as willful (e.g., reckless disregard for, or deliberate indifference towards, employee safety), the maximum penalty for each citation would be $134,937. Keep in mind that state OSHA plans, not regulated by the federal government, can adopt emergency COVID-19 regulations, which have the same impact as any other OSHA regulation, and enforce those against employers who fail to comply with them. Virginia recently became the first state adopt such a regulation, which includes notification requirements that vary from those of the CDC.

Although it is an evolving area of the law, claimants’ counsel will argue to courts that the violation of a CDC guideline is evidence of negligence, willfulness, or intent on behalf of the employer. Plaintiffs’ counsel will assert that the CDC guideline has established the level of care or duty owed to an employee or other claimant, and that the duty was breached by the company.

This argument will be made regardless of the jurisdiction, venue, or type of claim, including workers’ compensation claims, claims filed directly by an employee seeking recovery above and beyond workers’ compensation benefits, and those filed by third-parties (e.g. visitors, employee spouses) against companies. To protect your company from such claims, remember to follow these steps to minimize your exposure.

DOL Issues New FMLA Forms

July 30 - Posted at 2:37 PM Tagged: , , , ,

Earlier this month, the DOL’s Wage and Hour Division issued new model forms for employers to use when administering employee leave under the FMLA. The revised model notice of rights, certification, and designation forms were immediately effective and are now available to assist employers and employees in meeting their FMLA notice and certification obligations.

Background

The federal Family and Medical Leave Act (FMLA) covers private employers with 50 or more employees as well as public agencies and public and private elementary or secondary schools, regardless of the number of employees. The FMLA generally entitles eligible employees to take up to 12 weeks of unpaid, job-protected leave in a 12-month period for specified family and medical reasons and additional leave to care for a covered servicemember.

All covered employers must post a general notice about the FMLA (FMLA poster) in each workplace and distribute a notice to new hires. Additionally, covered employers who have FMLA-eligible employees must provide them with notices about: FMLA eligibility status, rights, and responsibilities; when specific leave is designated as FMLA leave; and the amount of time that will count against their FMLA leave entitlement. When an employee requests FMLA leave due to their own or a covered family member’s serious health condition, or for military family leave, the employer may require appropriate certification.

Revised FMLA forms

The DOL’s Wage and Hour Division (WHD) released revised versions in mid July of its model notice of rights, certification, and designation forms under the FMLA. According to the WHD, the new forms, which are effective immediately, are “simpler and easier for employees, employers, leave administrators and healthcare providers to understand and use.”

The following updated FMLA forms are now available to assist employers and employees in meeting their FMLA notification and certification obligations:

These optional-use forms can be used by employers to provide required notices and by employees to provide certification of their need for FMLA qualifying leave. The new forms are electronically fillable PDFs that can be saved and transmitted electronically. Employers may still use the agency’s prior model forms or they may use their own forms, as long as they provide the same basic notice information and require only the same basic certification information.

To some extent, the new model forms simplify FMLA administration by substituting check boxes for some previously required written responses. The revised Notice of Eligibility & Rights and Responsibilities form contains additional information on the substitution of paid leave and concurrent leave usage during a qualifying FMLA absence. The revised certification forms similarly include additional information on the circumstances in which employers may obtain follow-up information from health care providers and are reorganized to make it easier to determine whether a serious health condition exists. As the WHD made clear, an employee who already provided the required FMLA information using the old certification form cannot be required to provide that same information using the revised form.

Notably, the WHD did not revise the FMLA poster or issue a generic “Fitness-for-Duty” certification. Further, the new forms do not address the paid sick leave or expanded FMLA leave requirements of the Family First Coronavirus Response Act (FFCRA). 

 

 

When an Employee Becomes Emotional, What’s a Manager to Do?

July 24 - Posted at 1:00 PM

An employee who erupts into an angry tirade or bursts into tears may be just as surprised as everyone else at the workplace by the sudden onslaught of emotion. 

As workers deal with the uncertainty and loss resulting from a global pandemic, a recession and racial tensions, such emotional flare-ups are increasingly likely to occur. However rattling, a meltdown is not necessarily a terrible thing. 

Emotions that aren’t dealt with “don’t go away. They just go underground, to the detriment of everybody,” said Laura Putnam, a workplace wellness consultant and the CEO of Motion Infusion, a wellness and performance improvement provider in San Francisco. 

With so much for employees to worry about, “there’s an extra load on a manager right now, no question,” said Jordan Friesen, national director of Workplace Mental Health at the Canadian Mental Health Association, based in Winnipeg, Canada. “But the idea of creating a sense of psychological safety among your employees hasn’t changed; it has just become more important.” 

When an Employee Crumbles

Managers who find themselves in the middle of an employee’s emotional crisis should aim to be patient and kind—and to stay calm themselves. Other tips for dealing with breakdowns in a compassionate way include:  

  • Allow the employee to vent, if possible. “Give the employee some space and time to experience whatever emotion they’re having,” said Krystal Lewis, Ph.D., a clinical psychologist at the National Institute of Mental Health in Bethesda, Md., who also has a private practice in Chevy Chase, Md. “As long as no one is at risk, don’t jump in and intervene right away.” If the employee says something hateful or threatening, however, it is the manager’s responsibility to tell the employee that behavior is not acceptable. 
  • If the outburst initially occurs in a public place, gently guide the employee to a more private area. This can help preserve both the employee’s dignity and the organization’s reputation. 
  • Listen actively to what the employee is saying. Don’t be afraid to be a little curious and ask a genuine question, which can show that you’re trying to understand what the employee is going through.
  • Don’t try to “fix” the employee’s problem—and think twice before giving advice. Offering up a quick solution can backfire because it can make the employee feel like you don’t understand or, worse, that you don’t care.  
  • Beware of well-intentioned but clichéd reassurances like “It’ll all work out,” or “I know you can get through this.” Phrases like these can seem dismissive and out of touch.  
  • If the outburst continues for an extended time, suggest a change of scenery. Encourage the employee to go for a walk or take a break and offer to come along.
  • After the outburst is over, acknowledge the difficulty of these times. Ask what you as the manager can do to help. Ask how the team can help. It may be helpful to ask if anything can be done to ease the employee’s anxiety—for example, a scheduling change or a shift in workload. 

Do not direct the employee to an employee assistance program (EAP) or other outside resource until the very end of the conversation. “It shouldn’t be just putting it on the employee—’This is your problem, here, go fix it,’ ” Lewis cautioned. 

“The typical formula for dealing with emotions has been to just refer out,” said Putnam, who is the author of Workplace Wellness that Works: 10 Steps to Infuse Well-Being and Vitality into Any Organization (Wiley, 2015). But providing a referral to an EAP can come across as aloof and disinterested if there isn’t a sense of rapport between the employee and the manager. “It’s difficult to play this role if there’s not a foundation of trust,” she said.

Signs an Employee Might Be Near a Breaking Point

Of course, it’s always better to prevent an employee breakdown than to clean up the aftermath. Managers may notice performance or personality changes that can indicate a worker is struggling, including:

  • Coming to work late or being absent frequently.
  • Extreme tiredness, which may suggest difficulty sleeping.
  • Trouble making decisions or staying focused. 
  • A notable difference in performance—less productive or significantly more productive. “If they are at work more than they normally would be, taking on multiple tasks and projects—even if they are getting things done—using that as a way to cope with outside stress could be problematic,” said Lewis, who researches stress and anxiety.   
  • Seeming down or frustrated or not showing much emotion at all. 
  • Changes in relating to co-workers, particularly if short-tempered or irritable.

Don’t make the mistake of assuming female employees are more likely to have an emotional breakdown at the office. A January study by Totaljobs, a London-based job board, found that while women were twice as likely to have cried in the workplace (41 percent compared to 20 percent of men), men were far more likely to have been overcome by anger. Forty-three percent of men reported shouting in the workplace, compared to 26 percent of women. Men were also three times more likely to get upset because a project missed a deadline, went over budget or got canceled.   

Preventative Measures to Implement Now

“Managers are uniquely positioned within the organization to create a safe harbor for their team. This is more true now than ever before,” Putnam said. To this end, managers can build employee trust by incorporating routines that anticipate workers’ concerns and prevent or address some of their worries.

One-on-one check-ins. Managers should check in with their employees on a one-on-one basis, ideally every week, experts said. That’s not the same as taking a couple of minutes at the start of an in-person or virtual meeting to ask how everyone is doing.

During this one-on-one time, employees should be encouraged to talk about the demands of the job, their workload, any safety concerns or any personal issues. Some employees may have no one they can talk to outside of work.

“The message should be, ‘We care about you first,’ ” said Mari Ryan, the founder and CEO of Advancing Wellness, a workplace well-being consultancy based in Watertown, Mass. 

Communication—lots of it. “There is a huge amount of job insecurity right now,” said Ryan, who is the author of The Thriving Hive: How People-Centric Workplaces Ignite Engagement and Fuel Results (Pequossette Press, 2018). “So it’s important to communicate in a really transparent way—and frequently.” She suggests a weekly or even daily e-mail from a manager or head of the organization saying, “Here’s what’s going well, here’s where we’re having challenges.” A lack of communication only adds to the uncertainty, so even if nothing has changed, tell employees that.  

The second type of communication that employees need right now: anything that pertains to benefits or help they can receive. “Whatever resources your organization offers, make sure that employees know about them,” Friesen said. “Employees in crisis may not have the energy or the will to take on an extensive search” to uncover the details of a company’s physical and mental health or financial services options.  

“By repeating simple messages often, employers can reach more employees and have more of an impact,” said Jenny Burke, senior director of the Impairment Practice at the National Safety Council in Itasca, Ill.  

Modeling self-care. For physical and mental well-being, good self-care is essential. But for employees who are already strained, carving out time to do something for themselves might seem like an impossible task.

Managers can lead the way by practicing good self-care and making it a point of discussion with their teams. “Getting some exercise, preferably outside, getting enough sleep, eating healthy foods—these can all create a sense of security and are things each person feels they can control to some degree,” Ryan said. During work hours, managers can allow time for employees to take walks, engage in meditation or yoga, or take part in support groups and other wellness-related opportunities.   

Mental Health as a Priority Going Forward

It’s expected that the mental health impacts of the COVID-19 pandemic, the recession and racial tensions will continue to manifest in the coming months and years, Burke said. “Providing support for individuals and educating employees is critical but will have limited impact if workplaces do not simultaneously work toward the reduction or elimination of stressors in the workplace.”  

Lewis agreed that even after the virus is under control, unemployment goes down and racial tensions ease, “it’s important for organizations to come up with a long-term plan to make sure they have the supports in place for dealing with employees who will be suffering from anxiety, depression and trauma in the future.” 

Organizations have a responsibility to their workers to reduce stress on the job and to provide for their physical and mental well-being, Friesen believes. “If it’s the human beings that make the work great, we as the employers need to be taking care of them,” he said.  

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