COVID-19: News and Updates |
| Special #46 - June 23, 2020 |
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Free Live Webinar
District Court puts Unions back in Business
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Join GEA and Mel Haas, Jeff Thompson and Jonathan Martin from the Constangy, Brooks, Smith & Prophete,LLP law firm as we discuss unionization issues in the news and activity that is occuring in the Georgia area.
In addition, we will discuss ways to handle political and social unrest issues in a work environment.
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July 1st, 2020 / 11 pm - 12 pm EDT
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| | | Mark Your Calenders
Georgia Employers' Association's 2020 Annual Conference at The Westin Harbor Golf Resort and Spa
Conference will be held on September 27 – 29, 2020
Title: 2020 Vision - A Decade for Change
Please contact us if you have any questions. Registration will start soon. |
| | | Articles and Updates Today
- The U.S. Department of Labor will host four webinars in June and July
- Constangy.com Blog: Employers can't test for COVID-19 antibodies, EEOC says BY ROBIN SHEA ON 6.18.20
POSTED IN CORONAVIRUS, DISCRIMINATION
- Link to Webpage: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws
- 365,This Week’s Update: What's New in the HR Compliance LibraryJune 22, 2020
- ¶47,077 Form I-9 physical presence requirement during document review suspended further to July 19 — AGENCY REGULATION, June 22, 2020
- HRDive Article: 5 stories exploring the compliance implications of employee monitoring
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| | | | The U.S. Department of Labor will host four webinars in June and July to discuss how the Department is helping workers and employers by reducing regulatory burdens and making it easier to understand and comply with the law. The webinars will also provide an opportunity for workers, employers, and state and local governments to ask questions and discuss how the Department can expand and improve access to its compliance assistance materials.
WHAT: Compliance Assistance Webinars
WHEN:
Agriculture
Guest Speaker: Wage and Hour Division Administrator Cheryl Stanton
Tuesday, June 23, 2020, 1:00 p.m. to 2:15 p.m. EDT
Register at Link Compliance Assistance Webinar 1
Manufacturing and Construction
Guest Speaker: Occupational Safety and Health Administration Principal Deputy Assistant Secretary Loren Sweatt
Thursday, June 25, 2020, 1:00 p.m. to 2:15 p.m. EDT
Register at Link Compliance Assistance Webinar 2
Food Service, Hospitality, and Retail
Guest Speaker: Employment and Training Administration Deputy Assistant Secretary Amy Simon
Tuesday, June 30, 2020, 1:00 p.m. to 2:15 p.m. EDT
Register at Link Compliance Assistance Webinar 3
Health Care and Emergency Responders
Guest Speaker: Employee Benefits Security Administration Acting Assistant Secretary Jeanne Klinefelter Wilson
Wednesday, July 1, 2020, 1:00 p.m. to 2:15 p.m. EDT
Register at Link Compliance Assistance Webinar 4
The webinars will be hosted by the Department’s Office of the Assistant Secretary for Policy and its Office of Compliance Initiatives. Attendance is free, but attendees must pre-register online. If you have questions, please contact Marisela Douglass at douglass.marisela@dol.gov.
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| | | Constangy.com Blog: Employers can't test for COVID-19 antibodies, EEOC says
BY ROBIN SHEA ON 6.18.20
POSTED IN CORONAVIRUS, DISCRIMINATION
Read online >>
An ambiguity in the agency's prior guidance has been clarified.
The Equal Employment Opportunity Commission updated its guidance on COVID-19 issues yesterday and clarified that employers may not test employees for COVID-19 antibodies. Doing so would violate the Americans with Disabilities Act, according to the agency. (Employers are allowed to test employees for current cases of coronavirus.)
Here is the new Q and A:
A.7. The Centers for Disease Control and Prevention] said in its Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace.” In light of this CDC guidance, under the ADA may an employer require antibody testing before permitting employees to re-enter the workplace? (6/17/20)
No. An antibody test constitutes a medical examination under the ADA. In light of CDC’s Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace,” an antibody test at this time does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA. Please note that an antibody test is different from a test to determine if someone has an active case of COVID-19 (i.e., a viral test). The EEOC has already stated that COVID-19 viral tests are permissible under the ADA.
The EEOC will continue to closely monitor CDC’s recommendations, and could update this discussion in response to changes in CDC’s recommendations.
Tags: ADA, Americans with Disabilities Act, Coronavirus, EEOC, Equal Employment Opportunity Commission
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| | | Link to Webpage: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws
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| | | 365,This Week’s Update:
What's New in the HR Compliance Library
June 22, 2020 from GEA's HR answers now
Here’s a brief listing of what is new and what has changed in the HR Compliance Library:
Sexual orientation/gender identity discrimination. In a landmark decision issued on June 15, 2020, a divided U.S. Supreme Court held that Title VII's protections from discrimination “because of sex” extend to gay and transgender employees. Each of the three combined cases before the Court — Bostock v. Clayton County, Georgia; Zarda v. Altitude Express, Inc.; and R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC — involved the termination of a long-time employee. Two were fired shortly after revealing they were gay, and the third, an employee who initially presented as a male, was fired after telling her employer she planned to live and work full-time as a woman. The Court concluded that it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. While numerous states and localities already have laws prohibiting discrimination based on sexual orientation and gender identity, this new ruling expands these employment protections across the country.
- ¶38,510 Transgender employees
Meaning of "transgender." The term "transgender" is broad and refers to people who do not conform to a stereotypical gender role. According to the Out & Equal Workplace Advocates, "transgender" is a broad term that applies to people who live all or much of their lives expressing a different gender from their sex at birth. In other words, transgender people simply feel like their assigned sex at birth fails to reflect their true gender. Expressed another way, a person who is born female feels that s/he really should have been born a male and wishes to live openly as a man (or vice versa). When a transgender individual is in the working population, HR must deal with sensitive issues, such as stereotypical expectations, name changes, and the use of restroom facilities, among others.
Title VII protections. While "gender identity" and "sexual orientation" are not designated protected categories under Title VII of the Civil Rights Act of 1964, the U.S. Supreme Court has ruled — in Bostock v. Clayton County, Georgia — that they are included under the law’s prohibition against employment discrimination based on sex. In a landmark decision issued on June 15, 2020, the High Court held that Title VII’s protections from discrimination "because of sex" extend to gay and transgender employees ( 5). As a result, employers may not discriminate against or discharge an individual based solely on sexual orientation or gender identity.
Coronavirus. The U.S. Equal Employment Opportunity Commission (EEOC) has updated its technical assistance publication, which addresses questions arising under the federal equal employment opportunity laws related to the coronavirus (COVID-19) pandemic. New questions address disability and pregnancy accommodations, pandemic-related harassment, flexibility in work arrangements, alternative methods of screening, age discrimination, caregiver responsibilities, and antibody testing. For details, see the Analysis and Guidance at ¶71,079 in the Safety, Security, Risk Management category under the “Communicable Diseases” topic.
Cafeteria plans. According to new research from Mercer, just under half (47 percent) of employers will allow some type of mid-year election change in light of IRS Notice 2020-29, which relaxed the rules relating to Sec. 125 cafeteria plans. Among these employers, 43 percent are allowing changes in dependent care flexible spending account (FSA) contributions, and 30 percent are permitting changes to health FSA contributions. Fewer employers are planning to allow changes to medical plan elections, such as enrolling in a plan after having waived coverage or adding a dependent. Results from the survey are summarized in the Analysis and Guidance at ¶11,175A in the Benefits category under the “Cafeteria Plans” topic.
Health care reform. Sponsors of self-insured health plans (as well as issuers of accident and health insurance policies) must pay a Patient-Centered Outcomes Research Trust Fund fee to help fund the Patient-Centered Outcomes Research Institute (PCORI). The amount of the fee is based on the average number of lives covered under the plan. According to a new notice from the IRS, the fee per covered life is $2.54 for plan years ending on or after October 1, 2019, and before October 1, 2020.
The PCORI fee was set to expire at the end of 2019, but the Further Consolidated Appropriations Act, 2020 extended it through 2029. The IRS notice includes transition relief because, due to the extension, self-insured health plans may not have anticipated the need to identify the number of covered lives for this period. Under the relief, self-insured plan sponsors may use any reasonable method for calculating the average number of covered lives. If the plan sponsor uses a reasonable method to calculate covered lives, the plan must apply the method consistently for the duration of the plan year. In addition to the reasonable method, self-insured plan sponsors may continue using the actual count method, the snapshot method, or the Form 5500 method.
The new fee and the transition relief are reported in the Analysis and Guidance at ¶14,420 and the Issue and Answer at ¶14,658, both located in the Benefits category under the “Health Benefits and Insurance” topic.
Leave donation programs. The IRS is providing special relief that supports leave-based donation programs for victims of the COVID-19 pandemic. Under the program, employees may forgo their vacation, sick, or personal leave in exchange for cash payments the employer makes to charitable organizations providing aid for the victims. Donated leave will not be included in employee income or wages, and employers will be permitted to deduct the cash payments as business expenses. The relief, applicable to employer cash payments made before January 1, 2021, is discussed in the Analysis and Guidance at ¶15,445 in the Benefits category under the “Leave Donation” topic.
Hiring veterans. The Veterans' Employment and Training Service (VETS) has updated its Employer Guide to Hiring Veterans, which contains tips and resources on recruiting, hiring, and retaining veterans. The guide covers ways to recruit veterans before they leave active duty, as well as options for training veterans on the specific skills needed for an employer's workplace. See the Sample Document at ¶42,595 in the Employee Relations category under the “Diversity and Inclusion Initiatives” topic.
Employment eligibility verification. Due to continued precautions related to COVID-19, the U.S. Department of Homeland Security (DHS) has issued another 30-day extension of its policy deferring the physical presence requirements associated with Form I-9, Employment Eligibility Verification, for employers operating 100-percent remotely in light of the pandemic. The expiration date is now July 19, 2020.
The DHS also granted a new 30-day extension to employers who were served notices of inspection (NOIs) during March 2020 and had not already responded. This will be the final extension relative to NOIs served during March, according to the agency.
The extensions are noted in the Analysis and Guidance at ¶71,080 in the Safety, Security, Risk Management category under the “Communicable Diseases” topic.
Heat safety. Although illness from exposure to heat is preventable, thousands of Americans become sick from occupational heat exposure every year. Occupational risk factors include heavy physical activity, warm or hot environmental conditions, lack of acclimatization, and wearing clothing that holds in body heat. As summer officially begins, the Occupational Safety and Health Administration (OSHA) is reminding employers about its heat resources, which can help employers and workers recognize and avoid the risks. Check them out here.
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| | | | ¶47,077 Form I-9 physical presence requirement during document review suspended further to July 19 — AGENCY REGULATION,
June 22, 2020 From GEA's HR answers now
On June 16, Immigration and Customs Enforcement (ICE) announced another extension of the flexibility in rules related to Form I-9 compliance that was granted earlier this year. Due to continued precautions related to the Coronavirus pandemic, the Department of Homeland Security (DHS) has decided to once again extend this policy for employers operating 100-percent remotely in light of COVID-19 for an additional 30 days, with a new expiration date of July 19.
Form I-9 compliance flexibilities. On March 19, due to precautions implemented by employers and employees associated with COVID-19, the DHS announced that it would exercise prosecutorial discretion to defer the physical presence requirements associated with the Employment Eligibility Verification (Form I-9) under section 274A of the Immigration and Nationality Act. This provision was implemented for 60 days and was set to expire on May 19, but on May 19, DHS extended it for an additional 30 days.
Final NOI extension. Employers who were served notices of inspection (NOIs) by ICE during the month of March 2020 and had not already responded were granted an automatic extension for 60 days from the effective date. ICE will grant an additional extension of 30 days to these employers. This will be the final extension relative to NOIs served by ICE during the month of March 2020.
Physical presence review eased. Under the flexibilities guidance, employers with employees taking physical proximity precautions due to COVID-19 are not required to review the employee’s identity and employment authorization documents in the employee’s physical presence. However, employers must still inspect the Form I-9, Section 2 documents remotely—over video link, fax, or email, for example—and obtain, inspect, and retain copies of the documents, within three business days for purposes of completing Section 2.
ICE also said that employers should enter "COVID-19" as the reason for the physical inspection delay in the Section 2 additional information field once physical inspection takes place after normal operations resume. The documents must be physically inspected within three days after normal operations resume. Once inspected, the employer should add "documents physically examined" with the date of inspection to the Section 2 "additional information" field on the Form I-9, or to Section 3 as appropriate.
Additional information on the original flexibilities guidance, including eligibility requirements, is available here.
Monitoring. DHS will continue to monitor the ongoing national emergency and provide updated guidance as needed. Employers are required to monitor the DHS and ICE websites for additional updates about when the extensions will be terminated and normal operations resume.
Source: Written by Pamela Wolf, J.D.
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| | | | HRDive Article: 5 stories exploring the compliance implications of employee monitoring
As employers sent workers home, they turned to productivity monitoring. Now that they're bringing them back, employee contact tracing has garnered attention.
- Productivity monitoring: Considerations for HR, from compliance to culture
By Pamela DeLoatch June 8, 2020
Despite the popularity of remote work, some employers aren't sold on the idea, worried that employees will slack off. Enter: productivity monitoring. Read the full article ➔
- Employees confident they can do their jobs effectively from home during COVID-19 pandemic
By Ryan Golden • March 25, 2020
It's important to note that the option isn't available to all workers.
Read the full article ➔
- COVID-19 contact tracing: risks and requirements
By Aman Kidwai • June 15, 2020
Employers will have compliance risks, data privacy concerns and employee morale to consider when implementing health screening and contact tracing. Read the full article ➔
- Survey: Workplace contact tracing is not popular with professionals
By Sheryl Estrada • June 5, 2020
Tech companies are manufacturing tools to support contract tracing, but some experts argued it could be a vehicle for "abuse and disinformation." Read the full article ➔
- Kronos unveils contact tracing to track COVID-19 spread at work
By Ryan Golden • April 30, 2020
The CDC has advised employers to inform employees of possible exposure to COVID-19. Read the full article ➔
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| | | | Georgia Department of Public Health COVID-19 Daily Status Report For: 06/03/2020 Updated 3pm daily
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Georgia Employers' Association |
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