Workplace Immigration Officials Extend “Relaxed” Remote Work I-9 Rules Into 2022

January 04 - Posted at 2:52 PM Tagged: , , , ,

Federal workplace immigration officials recently announced that “relaxed” I-9 rules have been extended until April 30, 2022, ensuring that employers can inspect I-9 documents for certain employees working remotely due to COVID-19 restrictions by way of camera or fax. U.S. Immigration and Customs Enforcement (ICE) noted that this extension will ensure that the guidance for employees hired on or after April 1, 2021, and working exclusively in a remote setting due to COVID-19-related precautions will remain in place for the next several months. What do employers need to know about this December 15 announcement?

Overview

Employees who qualify for these relaxed rules are temporarily exempt from the physical inspection requirements associated with the Employment Eligibility Verification (Form I-9) until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier.  When an affected employee commences “non-remote employment on a regular, consistent, or predictable basis” the employer must verify the employee’s documentation in person within three business days.

What if the Remote Employee Leaves Employment Before We Have a Chance to Inspect Their I-9 Documents in Person?

In its announcement, ICE also provided the following guidance: “Employers may be unable to timely inspect and verify, in-person, the Form I-9 supporting documents of employee(s) hired since March 20, 2020, . . .in case-by-case situations (such as cases in which affected employees are no longer employed by the employer). In such cases, employers may memorialize the reason(s) for this inability in a memorandum retained with each affected employee’s Form I-9. Any such reason(s) will be evaluated, on a case-by-case basis, by DHS ICE in the event of a Form I-9 audit.”

When a government agency announces a “case by case” policy, this is of little comfort to employers. We suggest that employers err on the side of caution and have remote new hires’ Form I-9 documentation physically inspected by an authorized representative retained by the employer for that purpose, unless COVID-19 restrictions render that option unadvisable. 

You should carefully coach authorized representatives on how to correctly fill out page 2 of the I-9, as any errors or omissions will be attributed to the employer. In the alternative, you should monitor remote employees’ visits to the workplace and conduct the in-person follow-up document review as early as possible.

What’s Next?

Given that fines for I-9 errors can run in the thousands of dollars per I-9, the cost of a self-audit is relatively inexpensive, and helps ensure compliance moving forward.   

Reminder: OSHA 300A Logs Must Be Posted By Feb 1st

January 03 - Posted at 8:45 AM Tagged: , , ,
All OSHA 300A logs must be posted by February 1st in a visible location for employees to read. The logs need to remain posted through April 30th.

Please note the 300 logs must be completed for your records only as well. Be sure to not post the 300 log as it contains employee details.
The 300A log is a summary of all workplace injuries, including COVID cases,  and does not contain employee specific details. The 300A log is the only log that should be posted for employee viewing.

Please contact our office if you need a copy of either the OSHA 300 or 300A logs.

CDC’s New Shorter Quarantine Period is Welcome News for Those Who Got COVID for Christmas

December 28 - Posted at 7:41 AM Tagged: , , , , , ,

The CDC announced on December 27th that it is updating its quarantine and isolation guidance. For people with COVID-19, the isolation period was reduced from ten days to five days as long as the individual has no symptoms or their symptoms are resolving after five days. Importantly, the revised isolation guidance does not recommend an individual have a negative COVID-19 test before ending their isolation period after day 5.

For people who have been exposed through close contact with someone infected with COVID-19, whether an individual is recommended to quarantine is no longer dependent on vaccination status alone.  Rather, whether quarantine is recommended now also depends on whether an individual has received a booster and how long it has been since an individual completed their vaccination series.  For people who are unvaccinated or received their second mRNA dose (Pfizer or Moderna) more than 6 months ago or the J&J vaccine more than 2 months ago, and have not received a booster shot, the CDC now recommends quarantine for 5 days, followed by 5 days of masking. For people who have received their booster shot or who have recently completed their primary vaccine series, the CDC does not recommend such individuals quarantine following an exposure, but the CDC does recommend they wear a mask around others for 10 days.

The CDC also recommends that everyone who has been exposed to COVID-19, regardless of vaccination status, be tested on day 5 following the exposure if possible. Finally, everyone who either has COVID-19 or was exposed to someone with COVID-19 should wear a well-fitted mask for a full 10 days.

Employers should review their COVID-19 policies and protocols, communicate any changes to their employees and be prepared to answer employees’ questions. Employers are reminded to consider states and local health authorities which may have different guidelines.

Sixth Circuit Dissolves Stay of OSHA COVID-19 Vaccine ETS

December 20 - Posted at 10:41 AM Tagged: , , , , , , ,

The U.S. Court of Appeals for the Sixth Circuit has lifted the Fifth Circuit’s stay of the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) on COVID-19 vaccination and testing for employers with at least 100 employees. 

Multiple parties, including 27 states, have filed emergency motions with the U.S. Supreme Court to block the ETS.

In an opinion authored by Judge Jane B. Stanch, a three-judge panel determined in a 2-1 vote that, in light of the continued spread of COVID-19 variants, OSHA “must be able to respond to dangers as they evolve.” Judge Stanch was appointed to the bench by President Barack Obama. She was joined by Judge Julia Smith Gibbons, an appointee of President George W. Bush. Judge Joan Larsen, an appointee of President Donald Trump, dissented, noting employees are exposed to COVID-19 even while not working and OSHA had not established there was “grave danger” in the workplace or the ETS requirements would correct that.

OSHA quickly announced that it will not issue citations for noncompliance before January 10, 2022. The agency also stated it will exercise its discretion and not issue citations for noncompliance with testing requirements under the ETS before February 9, 2022, if an employer is exercising reasonable, good faith efforts to come into compliance with the standard.

The ETS includes face covering requirements, a written policy, collection of proof of vaccination, creation of a vaccination status roster, removal of COVID-19 positive or untested employees from the workplace, maintenance of employee medical records, and certain employee communications about the employer’s policies and vaccine information from the Centers for Disease Control and Prevention. Covered employers will need to decide whether to adopt a mandatory vaccination policy, subject to reasonable accommodations and required exemptions, or a vaccination or weekly test policy. Covered employers implementing a mandatory vaccination plan still must comply with all other requirements, such as weekly testing for employees who are excused from the mandate as a reasonable accommodation.

None of the 22 approved State Plans covering private employers have taken steps to enact an ETS, but they are required to notify OSHA of their intentions to do so within 15 days of promulgation of the standard, and to act within 30 days. In addition, California’s Cal/OSHA has approved revisions to the state’s existing COVID-19 emergency temporary standard. It is unclear whether it will take further action now with respect to the OSHA ETS. It is also unclear whether the Fifth Circuit stay that was in effect until December 17 tolls the deadlines for OSHA State plan adoption deadlines. The ETS has immediate effect in the other 29 states and territories, albeit with the new enforcement delays.

Employers in states and localities that prohibit or restrict vaccination or face covering requirements must be mindful of state and local laws, ordinances, and executive orders that might limit the employer’s ability to require vaccination or otherwise conflict with ETS requirements, particularly if an employer opts for the ETS’s mandatory vaccination policy. While the Sixth Circuit lifted the stay, it has yet to decide the case on the merits, including arguments over whether the ETS overrides state or local laws due to federal preemption. Significantly, Alabama, Arkansas, Florida, Iowa, Kansas, Montana, North Dakota, Tennessee, Texas, Utah, and West Virginia have enacted measures that would restrict or impact vaccination requirements. Some of these states are OSHA State Plans and some are actually federal OSHA jurisdictions, creating additional compliance confusion.

Several petitioners have already appealed to the U.S. Supreme Court to stay enforcement of the ETS, emphasizing the irreparable harm they will suffer in having to implement the ETS and providing supporting witness declarations. They continue to argue irreparable harm based on labor shortages, the unavailability of tests and unintended (and ironic) consequences of laying off vaccinated workers to financially support compliance. In addition to the challengers’ concerns about the economic viability of their businesses, they argue their likelihood of success in enjoining the standard on the merits and balance of equities weigh in favor of a stay.

Emergency appeals, such as the request for a stay of a ruling by a Circuit Court, go directly to a justice assigned to that Circuit — in this case, to Justice Brett Kavanaugh, who is assigned to the Sixth Circuit. The assigned justice may distribute the application to the full court to consider or decide the request on their own. Just a few months ago, Justice Amy Coney Barrett rejected an emergency request made by a group of Indiana University students seeking to block enforcement of the school’s vaccine mandate after the Seventh Circuit refused to enjoin the mandate. Justice Barrett did not refer the emergency application to the full Supreme Court and did not provide an explanation in the denial of the petitioners’ request.

If you have questions or need assistance on the OSHA ETS, please reach out to AAG for guidance. 

President’s Path Out of the Pandemic Adds Hurdles for Employers

September 10 - Posted at 8:10 AM Tagged: , , , , , , , ,

On September 9, 2021, the White House issued Path Out of the Pandemic: President Biden’s COVID-19 Action Plan (the Plan). The Plan outlines a six-pronged approach, portions of which will impose new obligations on employers across the country.

Most notably for employers, the first prong of the Plan, “Vaccinating the Unvaccinated,” includes:

  • Direction to the Department of Labor’s Occupational Safety and Health Administration (OSHA) to issue an Emergency Temporary Standard (ETS) requiring all employers with 100 or more employees to ensure that all employees are fully vaccinated or able to produce a negative COVID-19 test result on at least a weekly basis;
  • A new Executive Order that requires certain government contractors to comply with guidance, to be published later this month by the Safer Federal Workforce Task Force (Task Force Guidance or Guidance), which presumably will require that employees who work on or in connection with certain government contracts be vaccinated, regardless of whether they work on a federal site;
  • A statement that the Centers for Medicare & Medicaid Services (CMS) will be taking action to require COVID-19 vaccination for workers in most health care settings that receive Medicare or Medicaid reimbursement as a condition of Medicare/Medicaid reimbursement (similar to what was previously announced by the President in August 2021 for nursing homes); and
  • Direction to OSHA to require covered employers to provide paid time off for employees to get vaccinated or recover from vaccination.

The Plan also calls on states to adopt vaccination requirements for all school employees as part of the effort to “keep schools safely open.”

The Plan indicates that the administration will increase the amount of COVID-19 testing by ramping up production of testing products, offering at-home rapid COVID-19 tests at cost through certain retailers, and expanding free testing at retail pharmacy sites, among other things.

While the Plan is far-reaching, there are still many unknowns. Employer obligations arising from OSHA’s ETS will be dictated by the timing and the specific ETS provisions and corresponding requirements. The only thing we know for certain about the forthcoming ETS is that employers will need to continue to adapt and be prepared to pivot if necessary.   It is also unclear how the new ETS will fit in with OSHA’s current COVID-19 Healthcare ETS, in 29 C.F.R. 1910 Subpart U, or impact OSHA’s current guidance for non-healthcare employers. Further, the 27 states with OSHA-approved State Plans, such as California, Washington, Oregon, and Virginia, will need to determine how to respond to the ETS, once it is issued, and if certain provisions require implementation alongside the state’s standards and regulations.

CMS also issued a press release urging Medicare and Medicaid-certified facilities to “make efforts now to get health care staff vaccinated.” However, the agency noted that it is still developing an Interim Final Rule with Comment Period that will be issued in October.

Employers who are impacted by the Plan, and who may be impacted by an ETS once issued, are advised to start thinking through how they will navigate many legal issues and operational challenges related to required vaccination and testing. These issues include policy requirements, workplace testing strategies, vaccination tracking and management, medical record collection and retention, and accommodations for religion, disability and pregnancy, as well as wage and hour implications, bargaining obligations for unionized workplaces, employee confidentiality and privacy issues. Further, employers should consider the logistical impact on federal contracts and how these obligations will interplay with other state or local mandates or restrictions on vaccinations.

Stay tuned as we dive into the Plan and corresponding guidance documents, as well as await further information from federal agencies responsible for complying with the Plan and its directives. 

Same Old Situation for Employers? Top 10 Takeaways as OSHA Updates COVID-19 Workplace Guidance

August 16 - Posted at 2:22 PM Tagged: , , , , , , ,

In response to the surge of delta variant cases across the country, federal workplace safety officials just issued updated guidance to help employers and workers identify current COVID-19 risks for unvaccinated or otherwise at-risk workers – making many employers feel like they are in the same ol’ situation they were in just a few months ago. The Occupational Safety and Health Administration’s (OSHA’s) updated guidance, released on August 13, revises its June 2021 guidance applicable to those not covered by OSHA’s COVID-19 Emergency Temporary Standard (ETS) for healthcare workplaces and adheres to updated Centers for Disease Control and Prevention (CDC) coronavirus guidance issued last month. What are the top 10 takeaways employers need to know about with respect to OSHA’s most recent guidance?

OSHA’s Updated Recommendations

As most are aware by now, the CDC updated its recommendations for fully vaccinated individuals to reduce their risk of becoming infected with the delta variant and potentially spreading it to others. The CDC’s guidance addresses mask wearing in public indoor settings; choosing to wear masks regardless of the potential level of transmission (particularly if individuals are at risk or have someone in their household who is at increased risk of severe disease or not fully vaccinated); and revised testing recommendations for known exposures.

In its revised guidance, OSHA has essentially adopted analogous recommendations for employers. To follow this guidance, you should implement multi-layered interventions to protect unvaccinated and otherwise at-risk workers and mitigate the spread of COVID-19. In light of OSHA’s recent guidance, it is clear the agency is focused at facilitating higher vaccination rates via imposing new standards on employers.

Top 10 Employer Takeaways

Here are the top 10 takeaways from OSHA’s new guidance.

      1. Employers should implement methods to facilitate and encourage employee vaccination. OSHA recommends providing employees with paid time off to get vaccinated and paid time off to recover from any ill side effects of the vaccine. Employers are also encouraged to work with local public health authorities to provide vaccinations in the workplace for unvaccinated workers. Finally, OSHA suggests employers consider adopting policies requiring workers to get vaccinated or undergo regular COVID-19 testing – in addition to mask wearing and physical distancing – if they remain unvaccinated.
      2. Employers should instruct infected workers, unvaccinated workers who have had close contact with a positive COVID-19 case, and all workers with COVID-19 symptoms to stay home from work. As recommended by the CDC, fully vaccinated individuals who have a known COVID-19 exposure should get tested three to five days after the exposure event and wear a mask in public indoor settings for 14 days (or until they receive a negative test result). Individuals who are not fully vaccinated should be tested immediately, and if negative, tested again in five to seven days after their last exposure (or immediately if symptoms develop). OSHA expects all absentee policies to be non-punitive and that employers will promptly eliminate policies that might encourage workers to come to work sick.
      3. Employers should implement physical distancing in all common areas where unvaccinated and otherwise at-risk workers may be present. OSHA believes a “key way” to protect workers is to require physical distancing in the workplace – generally this means at least six feet. However, as workplace conditions may require employees to work close to one another and/or customers for extended periods of time, employers may consider limiting the number of unvaccinated or otherwise at-risk employees in one place at any given time. For example, employers might implement flexible schedules, allow remote/telework, rotate/stagger shifts, deliver services remotely (e.g., phone, video, or web), etc.

        At sites where unvaccinated or otherwise at-risk workers cannot physically distance, transparent shields (or other like barriers) may be considered. These types of barriers should block face-to-face pathways between individuals to prevent direct transmission of respiratory droplets. Any openings should be placed at the bottom, made as small as possible, and the height should consider the employee’s posture while working (i.e., sitting or standing). Ventilation, fire safety, and other safety considerations should be incorporated when designing and installing barriers.

      4. Unless their work task requires a respirator or other PPE, employers should provide workers no-cost face coverings or surgical masks as appropriate. OSHA’s guidance mirrors that of the CDC by recommending even fully vaccinated individuals wear masks in public indoor settings, noting that fully vaccinated people may desire to wear masks in public indoor settings regardless of community level of transmission. OSHA reiterates that workers should wear a face covering that covers both the nose and mouth to contain the wearer’s respiratory droplets and to help protect others and potentially themselves.

        Face coverings should be made of at least two layers of a tightly woven breathable fabric, such as cotton, and should not have exhalation valves or vents. They should fit snugly over the nose, mouth, and chin with no large gaps on the outside of the face. Workers who are outdoors may opt not to wear face coverings unless they are at risk. Regardless, employers should support employees who continue to wear a face covering, especially when working closely with others. If an employer determines PPE is necessary to protect unvaccinated and otherwise at-risk workers from exposure to COVID-19, the employer must provide PPE per the relevant OSHA PPE standards.

      5. Employers should educate and train workers on their COVID-19 policies and procedures using accessible formats and in languages they understand. Employers should train managers on how to implement their COVID-19 policies. These policies should be communicated clearly, frequently, and using multiple methods to promote a safe and healthy workplace. OSHA suggests that communications should be in plain language that unvaccinated and otherwise at-risk workers understand (including non-English languages, and American Sign Language or other accessible communication methods, if applicable) and in a manner accessible to individuals with disabilities. 

        Training should include basic facts about COVID-19, including how it is spread and the importance of physical distancing (including remote work), ventilation, vaccination, use of face coverings, hand hygiene, and workplace policies and procedures to protect workers from COVID-19 hazards. In addition, employers should implement a means of tracking which (and when) workers receive this information.

      6. Employers should suggest or require unvaccinated customers, visitors, or guests to wear face coverings in public-facing workplaces, such as retail establishments. All customers, visitors, or guests should wear face coverings in public, indoor settings in areas of substantial or high transmission. This could include posting a notice or otherwise suggesting or requiring individuals wear face coverings, even if no longer required by your jurisdiction.

      7. Employers should maintain workplace ventilation systems. As COVID-19 spreads more easily indoors, improving and maintaining ventilation systems is a key engineering control. Such a maintenance program can be used as part of a layered strategy to reduce the concentration of viral particles in indoor air (and consequently reduce the risk of transmission to unvaccinated and otherwise at-risk workers in particular). A well-maintained ventilation system is essential in any indoor workplace setting, and when working properly, ventilation is a primary control measure to limit the spread of COVID-19.

        Specific recommendations can be located within the American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) Guidance for Building Operations and Industrial Settings during the COVID-19 Pandemic. Key measures include ensuring HVAC systems are operating in accordance with the manufacturer’s specifications, conducting regularly scheduled inspections and maintenance, maximizing the amount of outside air supplied, installing air filters with a Minimum Efficiency Reporting Value (MERV) 13 or higher where feasible. Buildings without HVAC systems should maximize natural ventilation by opening windows or doors, when conditions allow (if that does not pose a safety risk) and consider using portable air cleaners with High Efficiency Particulate Air (HEPA) filters in spaces with high occupancy or limited ventilation.

      8. Employers should perform routine cleaning and disinfection. This is especially important if someone who has been in the facility within 24 hours is suspected of having COVID-19 or is a confirmed COVID-19 case. In those situations, OSHA recommends following the CDC’s cleaning and disinfection recommendations.

      9. Employers must record and report workplace COVID-19 infections and deaths: Under OSHA’s recordkeeping standard, employers are required to record work-related cases of COVID-19 illness on OSHA’s Form 300 logs if the following requirements are met: (1) the case is a confirmed case of COVID-19; (2) the case is work-related; and (3) the case involves one or more relevant recording criteria (e.g., medical treatment, days away from work). Likewise, employers must follow the requirements when reporting work-related COVID-19 fatalities and hospitalizations.

      10. Employers should implement protections from retaliation and set up anonymous methods for workers to raise concerns about COVID-19-related hazards. Employers should ensure workers know whom to contact with questions and/or concerns about workplace safety and health, and that there are prohibitions against retaliation for raising workplace safety and health concerns or engaging in other protected occupational safety and health activities. This could be accomplished by using an employee hotline or other method for workers to voice concerns anonymously.

Conclusion

The guidance also reminds employers to follow all other applicable mandatory OSHA standards. These mandatory OSHA standards include requirements for PPE, respiratory protection, sanitation, protection from bloodborne pathogens, and OSHA’s requirements for employee access to medical and exposure records.

CDC Reverses Course and Recommends Fully Vaccinated Individuals in “Substantial” and “High” Transmission Areas Continue to Wear Masks

July 28 - Posted at 11:30 AM Tagged: , , , , , , ,

The U.S. Centers for Disease Control and Prevention (CDC) announced yesterday that the agency now recommends that people in areas with “substantial” and “high” COVID-19 transmission should wear masks indoors, regardless of vaccination status. This announcement reverses the CDC’s May 13 guidance that vaccinated people do not have to wear masks in non-healthcare settings. The updated guidance comes on the heels of what some call the third (or fourth) surge of COVID-19 infections due to the highly transmissible Delta variant, which CDC Director Dr. Rochelle Walensky indicated behaves “uniquely differently” from prior virus strains. While Director Walensky stressed that the vast majority of severe illness and death is among unvaccinated people, she also indicated data shows breakthrough infections can happen in 1 out of 10 vaccinated individuals in a “substantial” or “high” transmission area.  So what does this mean for employers and your masking policies?

What Has Changed and Why?

The announcement reverses the CDC’s May 13 guidance that vaccinated people do not have to wear masks in non-healthcare settings. Since then, new data shows the Delta variant is more transmissible than earlier strains of COVID-19, with those infected with the Delta variant carrying the same viral load as unvaccinated individuals with COVID-19.

Indeed, the CDC indicates while most COVID-19 transmission occurs in unvaccinated people, the amount of the virus in breakthrough infections caused by the Delta variant (e.g., viral load) is comparable to unvaccinated infections. This led the CDC to conclude that – although rare – breakthrough infections of vaccinated individuals have the same potential level of transmissibility as unvaccinated persons. Accordingly, the agency urged communities with substantial and high transmission rates to enforce masking guidelines to prevent the spread of COVID-19.

What About OSHA’s Emergency Temporary Standard?

Last month, OSHA issued its Emergency Temporary Standard (ETS), which gave wide latitude to most employers on their masking policies for vaccinated workers. OSHA provided that, except for workplace settings covered by the agency’s healthcare ETS and the remaining mask requirements for public transportation settings, most employers no longer need to take steps to protect their workers from COVID-19 exposure in any workplace, or well-defined portions of a workplace, where all employees are fully vaccinated. 

Yesterday’s CDC guidance could change that, particularly in areas with substantial and high transmission. That’s because the OSHA ETS specifically cited to the CDC’s May 13 guidance on masks as a factor to justify many of its recommendations.

According to the CDC, “high” transmission equals more than 100 cases per 100,000 people over a seven-day period, while “substantial” transmission equals 50-100 cases per 100,000 people over a seven-day period. The CDC recommended using its COVID-19 data tracker, which is updated daily by state and county. Much of the nation is currently in a substantial or high transmission category.  

Of course, employers should still take measures to protect unvaccinated or otherwise at-risk workers in their workplaces, or well-defined portions of workplaces, but many may need to implement masks for fully vaccinated workers in specific communities. 

What Should Employers Do?

The CDC’s new guidance provides important considerations for employers who may be thinking about implementing or rescinding masking policies. Even though CDC guidance is not directly binding  on employers, it is critically important. This is because OSHA’s guidance repeatedly refers to CDC guidance and clearly emphasizes the protection of people who are unvaccinated or otherwise at risk, which is the focal point of the CDC’s updated guidance.

If you have locations in areas which do not meet the criteria for “high” or “substantial” transmission, no immediate action is necessary. But it may still be prudent to have a plan in place to address how your company will adjust its masking policies if necessary. You should also consider state and local laws before making any changes to masking policies, given that states, such as Arkansas, have passed legislation barring entities (local governments) from imposing mask mandates.

If you are encouraging or mandating vaccines, you should also be prepared to address employee concerns over vaccination policies. This is especially true given the CDC’s position that infections are possible in vaccinated individuals and that those individuals may transmit the virus to others at a greater rate than previously understood. 

The Feds Are Coming, Is Your Business Ready? Part 3: OSHA

June 21 - Posted at 8:38 AM Tagged: , , , ,

Recent CDC recommendations on masking has caused confusion for employers everywhere.  Guidance advises that those vaccinated could resume many of their normal routines without wearing a mask.  However, the CDC doesn’t govern employers or fine them for non-compliance, OSHA does. As a result, employers are left wondering if they lift their facemask requirements or not.

The most recent information from U.S. Occupational Safety and Health Administration (OSHA) from January 29th stated that employers should not distinguish between vaccinated and unvaccinated employees.  But doesn’t that contradict what the CDC released in their newest guidance? OSHA did acknowledge the CDC guidelines mid-May, but has not yet specifically advised employers on what to do.  Companies are working around these guidelines (and lack thereof) to build policies that are most fitting to their level of exposure and potential liability. 

In addition to updating mask guidance, you can look for other changes from OSHA.  President Biden nominated Doug Parker to lead OSHA.  Parker currently heads California’s OSHA division (Cal/OSHA).  While his tenure at Cal/OSHA has been brief, his time there strongly suggests the potential for new federal standards and increased enforcement.  Cal/OSHA standards are complex and more stringent than Federal OSHA and provide standards that have no federal counterpart.  They laid the groundwork for many standards that have yet to be enacted at the federal level.  The aerosol transmissible diseases (ATD) standard may be a preview of a federal workplace infectious disease standard, especially in the wake of COVID.  That standard has already sparked a National Emphasis Program and an imminent federal emergency temporary standard (which Parker said would stand up to legal challenges during his confirmation hearing).  

How much of a California flare will he bring to the federal agency and what should you expect as an employer? 

Common consensus is that employers can expect increased enforcement under the Biden administration… more inspections, more citations, less negotiating and more litigating.  The new administration has made it clear they intend to double the number of investigators.  It is not a matter of if, but when, employers will see an uptick in OSHA inspectors knocking on doors.

When OSHA does arrive, it is important for you to have your compliance playbooks at the ready.  You can prepare now, regardless of the current regulatory and enforcement landscape, to better protect your workforce.   

As The Employer Advocate, AAG is happy to work with you to discuss your facemask options, areas to consider before you change your existing policy as well as when an outbreak or complication from a vaccine may be OSHA recordable.

The Feds Are Coming, Is Your Business Ready? Part 2: FFCRA

June 14 - Posted at 9:00 AM Tagged: , , , , , ,

This is the second in our four-part series designed to let you know what changes have taken place that may affect your business. AAG is a benefit brokerage that specializes in working alongside an employer’s Human Resource/Management Team to assist with keeping companies in compliance with the ever-changing state and federal regulations. 

The Family First Coronavirus Response Act (FFCRA) was amended earlier this year under the American Rescue Plan Act (“ARPA”). The amended act encompasses the same covered categories as the Federal law required last year with some expansions, options, and more room for abuse. 

If you are a private employer with less than 500 employees, you have the option to voluntarily extend FFCRA paid leave from April 1, 2021 through September 30, 2021 and receive a tax credit. However, you must proceed with caution because the rules have changed and if not followed you may not be eligible for the tax credit.

In addition to the previous six reasons for emergency paid sick leave (EPSL) under the FFCRA, if an employer chooses to offer, you must allow for the following three reasons:

  • An employee seeking or awaiting results of a COVID-19 test or diagnosis;
  • An employee obtaining a COVID-19 vaccine;
  • An employee recovering from an injury, disability, illness, or condition related to the COVID-19 vaccine.

The change also includes 10 new days of available leave effective April 1, 2021. If an employee took 80 hours of EPSL leave prior to April 1st, they will be eligible for a new bank of paid leave after April 1, 2021. 

The emergency family medical leave (EFML) under the FFCRA also has some key changes to be aware of:

  • Includes “all” of the EPSL reasons for leave, including the 3 additional reasons
  • Expanded to include the first 10 days of leave and increases the maximum paid leave over 12 weeks from $10,000 to $12,000

Employers will not have the option of whether to apply the new reasons for leave or the fresh 10-day bank. Should you decide to offer EPSL to employees, it must be offered completely and available to all employees. Strict compliance is required in order to be eligible for the tax credit.

As the world continues to open and more employees return to work, changes to these paid leave revisions will no doubt continue. With AAG on your side, you can focus on your employees while we stay on top of required changes and keep you informed! If you have any questions or would like additional information please reach out, we are here to help!

The Feds Are Coming, Is Your Business Ready? Part 1: New DOL Outreach

June 08 - Posted at 8:31 AM Tagged: , , , , , , , , , ,

The Department of Labor (DOL) has launched a new concentrated outreach initiative. For business owners, that means the DOL has promised to actively reach out via radio announcements, social media platforms and neighborhood posters informing employees of their rights under the Fair Labor Standards Act (FLSA). 

You may now be thinking “What does that have to do with me? I pay my employees to work”.  While this may be mostly true, often we (or our managers) inadvertently allow or encourage our employees to work off the clock.  Before your internal defenses kick into high gear, let me provide a few examples of how this could occur: 

  • Have you or one of your managers ever interrupted an employee during lunch to ask a “quick” work related question?
  • Do you auto deduct time for lunch each day?
  • Do your managers understand that if they need to reach out to employees before or after hours, even if it is a quick text or phone call, they should ensure the employee accounts for that time on their timesheet?
  • Do non-exempt employees have access to their work email on their personal phone?
  • How do you confirm time worked for remote employees is accurate?
  • Do you have a policy for your employees to report unauthorized or unapproved overtime?

Over the past year, business owners and managers have dedicated their time, energy and focus to keeping the essential business doors open or attempting to reopen and get employees back in the office.  To allow employees to safely return to work, you have had to operate/reopen your business within CDC guidelines, transition your business to accommodate a remote workforce, follow OSHA’s recommendations, keep up with Federal Equal Employment Opportunity Laws related to the COVID-19 pandemic, as well as the interaction between the Americans with Disability Act (ADA), Title VII of the Civil Rights Act of 1964, and the Genetic Information Nondiscrimination Act (GINA).  It is no wonder some of our focus on day-to-day compliance may have slipped. 

My company’s mission is to be The Employer Advocate.  Under the new administration, changes are happening at lightning speed and, as your advocate, we are here to help you navigate through changes as they occur.  Administrators Advisory Group (AAG) is a benefits brokerage that works with small to mid-size businesses, specializing in human resources compliance.  We work alongside your human resource team to keep you up to date with the latest workplace rules and regulations.

The Department of Labor (DOL) campaign is the first in our four-part series designed to let you know what changes have taken place that may affect your business. In the following weeks, we will cover changes regarding the Family First Coronavirus Response Act (FFCRA) as amended under the CARES Act, changes occurring within OSHA, and a new federal taskforce created whose goal is to unionize your employees. 

While Wage & Hour rules have not changed, the informational outreach by the DOL has just begun.  The biggest change comes in the form of visibility and accessibility of the information, beginning with the revamp of their website.  The DOL has promised to proactively reach out to employees using radio public service announcements, national webinars, social media messages, and posters. 

Reminding employers and employees alike that employees must be paid for ALL hours worked is the center of this outreach!  Even if you don’t ask an employee to work overtime, even if it’s done remotely, and even if you aren’t aware (but should have been), the employee is entitled to be paid.

Wage & Hour rules can be one of the many landmines that employers have to navigate on a daily basis. With AAG on your side, we will help you ensure you are prepared in case the DOL shows up on your doorstep. Let us know if you have questions or would like to review some of your existing practices or policies.

 

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