| Special #60 - August 14, 2020 |
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Live Webinars for August Presenter Pete Tosh Webinars: $49.00 USD Registration open till time of Webinar Transitioning from a Traditional Manager to a Strategic Leader Date - Friday, August 14, 2020 Time - 11:00 AM – 12:00 PM EDT
Next Thursday! Effectively Leading a Customer Service Team Date - Thursday, August 20, 2020 Time - 11:00 AM – 12:00 PM EDT
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How to Enhance Employee Engagement & Improve Your Organization’s Performance
Time: Aug 25, 2020 1:00 PM - 2:00 PM Eastern Time (US and Canada) Presenter Pete Tosh
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| HR and Employment Law News |
| - Constangy.com Bulletin: An employer's guide to masking in the workplace By David Smith, Mollie Smith / Altanta Office August 11, 2020
- HRDive Article: Reopening frameworks clearer for some, but school situation a 'huge concern' Author Ryan Golden @RyanTGolden
Published Aug. 11, 2020
- ¶47,195 Real average hourly earnings decrease 0.4% over the month in July — SURVEY RESULTS, (Aug. 13, 2020)
- ¶47,190 NASAA to DOL: Proposed class exemption jeopardizes retirees — AGENCY REGULATION, (Aug. 12, 2020)- Georgia Department of Public Health COVID-19 Daily Status Report
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| | | An employer's guide to masking in the workplace
BY DAVID SMITH, *MOLLIE SMITH ON 8.11.20 POSTED IN AMERICANS WITH DISABILITIES ACT, CORONAVIRUS, REASONABLE ACCOMMODATION, SAFETY Read Online>>
Nuances you never thought possible.
Debates about the necessity of face coverings, and whether face mask requirements are enforceable, have received a great deal of public attention throughout the COVID-19 pandemic. Although instructions at the federal level for non-health care workers simply point to recommendations from the Centers for Disease Control and Prevention, some states and corporations have mandated the wearing of face masks.
Most states require masks in specified circumstances, such as when social distancing is not possible. However, an increasing number of jurisdictions are issuing rules requiring adults to wear face coverings in all indoor public spaces.
Mask mandates have given rise to concerns about the possibility of stifled oxygen flow and carbon dioxide poisoning. The Occupational Safety and Health Administration directly addressed the question of oxygen levels in a recent Frequently Asked Question, stating that “Medical masks, including surgical masks, are routinely worn by health-care workers throughout the day as part of their personal protective equipment (PPE) ensembles and do not compromise their oxygen levels or cause carbon dioxide buildup.”
However, an employee could have a medical condition that precluded him or her from wearing a mask. This could include respiratory, and even psychological, conditions. If an employer mandates the use of face masks in the workplace (whether based on its own policy or a legal requirement), and if an employee is unable to wear one, the employer should request medical documentation and consider making a reasonable accommodation for the employee. Under the Americans with Disabilities Act, reasonable accommodations could include temporarily assigning the employee to a work area where social distancing is possible, or considering alternatives to face masks (including face shields or scarves), among other possibilities.
Retail and food service workers face dangers in the form of angry customers as they enforce mask use in their places of employment. A number of viral videos and news articles show confrontations in which employees are subject to verbal and even physical abuse from customers who refuse to wear masks. Some states now require companies to enforce face-covering laws, and some retailers have expressed resentment at being forced into the role of “mask police.” The policies are usually enforced through posted signage and verbal reminders from employees, who are most often instructed to avoid confrontations. Although employees might complain to OSHA about fears that confrontations could result in violence, it is unlikely that OSHA would issue a General Duty Clause violation for workplace violence in the absence of an actual physical altercation.
Face shields have been suggested by OSHA as an alternative in workplace situations when masks are not appropriate. This can include circumstances where the mask might become moist, or when employees are exposed to airborne chemicals that could collect on the surface of the mask. As already noted, allowing an employee to wear a face shield instead of a mask might be a form of reasonable accommodation under the ADA.
No federal agencies, however, have confirmed that face shields provide as much protection from COVID-19 as surgical masks or cloth face coverings. The CDC continues to recommend only masks or cloth face coverings. At least one state OSHA agency, the Washington Division of Occupational Safety and Health, has affirmatively stated that face shields are not an acceptable substitute for masks, and it is likely that other states might take issue with offering face shields as an alternative to masks.
We recommend that employers require their employees to use face masks or cloth face coverings in common areas, except in those circumstances where a face shield is considered safer, or is being offered as a reasonable accommodation. Companies should also require customers and visitors to wear face coverings while in the workplace, and, if possible, should offer free masks to anyone who doesn't have one. Employers with employees who have direct contact with the public should advise employees to avoid confrontations with customers or clients who refuse to comply.
*Mollie Smith is a senior and prelaw student at Samford University who is working in Constangy's Atlanta Office.
Tags: ADA, Americans with Disabilities Act, Coronavirus, Masks, Occupational Safety and Health Administration, OSHA, Safety, Workplace Safety
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HRDive Article: Reopening frameworks clearer for some, but school situation a 'huge concern'
As employers get creative to ensure employee safety, glaring challenges remain.
Published Aug. 11, 2020
Employers are charting paths to reopening workplaces in spite of the turbulence caused by the pandemic, and compliance frameworks are beginning to emerge, speakers said Aug. 5 at the 2020 Disability Management Employer Coalition Virtual Annual Conference.
As HR departments for essential businesses or customer-facing industries reopen, some questions are easier to answer than others at this stage, and though a framework for reopening workplaces does exist, there are still glaring unknowns.
"I don't think any of us have all the answers," said Seth Turner, chief strategy officer at leave management software company Absencesoft. "I don't know that anybody does as the rules continue to change throughout the U.S."
In some cases, workplaces that specialize in tasks that cannot be done remotely had longstanding practices that facilitated adoption of public health protocols. For example, biopharmaceutical company AbbVie's manufacturing facilities maintained mask-wearing policies before the pandemic due to government regulations, said Bindia Onik, senior benefits manager at AbbVie.
Employers with customer-facing employees may see a greater degree of discomfort about reopening. Retailer Designer Brands has many associates who say they do not feel comfortable returning to work in stores, said Erin Penland, benefits supervisor at the company. Designer Brands originally granted one to two weeks of emergency leave to associates, but it is now offering unpaid personal leave unless associates use available paid time off. But it is not subjecting employees to attendance points, she said. "We're trying to be as flexible as we can, but it is something we're constantly working through."
Simply being uncomfortable about COVID-19 is not protected by the Americans with Disabilities Act (ADA) nor the Family and Medical Leave Act, Marti Cardi, VP of product compliance at Matrix Absence Management, said during the presentation. But employers may need to provide an accommodation for someone who has a disability as defined under the ADA, she noted.
Speakers said their firms are largely turning to preventative measures and policies to ease the transition for workers. Of the six employers represented during the Aug. 5 presentation, all used temperature checks, and some took the idea further: Onik and Penland said their companies ask employees to do temperature checks before leaving home.
Some survey employees on whether they have experienced symptoms, others do not. Penland said Designer Brands is relying more so on "self-attestation" that associates are not sick before coming to work, and the company does not require workers to take a COVID-19 test before returning unless they have been diagnosed with the disease.
Manufacturing facilities, like those operated by Wisconsin-based Wausau Window and Wall Systems, are making physical adjustments. The company has added large curtain walls, taped off sections in common areas to promote social distancing and even set aside a "quarantine room" for employees who feel they have symptoms on the job, Abbie Jackson, HR and payroll coordinator at Wausau Window, said during a separate session of the conference. Hand sanitizers are placed near all entrances and doors, and masks are required as mandated by state law.
Wausau Window's operations staff have also worked closely with managers to communicate clear reopening expectations, and it has conducted training with associates and supervisors to, among other things, boost their confidence. "Support top-down makes a big difference," Jackson said. "Associates see that and realize everything's going to be okay."
Office employees adjust, though many stay home
Those working in corporate offices may find required adjustments more jarring than their counterparts in essential positions. Onik said that AbbVie’s corporate employees "aren’t accustomed" to the changes the company made to its office cafeteria spaces, while conference rooms in these spaces have been reduced to half capacity using space markers. There are also touchless water facilities and automated systems for coffee areas that dispense milk and half-and-half — employees used to share cartons.
AbbVie's other sanitation measures include installing plexiglass in reception areas and putting disinfectant wipes and hand sanitizer "on every possible area you can imagine," Onik said. The company has a dedicated cleaning staff on deck to frequently sanitize common areas.
Penland said Designer Brands provided employees at its home office with styluses that can be used to operate everything from touchscreens to water fountains and coffee machines. Employees are encouraged to use Microsoft Teams rather than meeting in conference rooms, which have been kept at half capacity, while tables at the office cafe are kept to a two-person limit and have been pushed apart from each other.
And yet, others are going even further to enlist technology during the reopening process. Unum, an insurer, has installed anti-microbial film on certain high-touch areas like door handles at its offices, Jeff Scheckley, assistant VP of global business resiliency at the company, said during the presentation.
Still, most workers at these employers have opted not to return to corporate offices as of early August. Abscencesoft's Turner said initial surveys of the company's 64 workers found only 16 wanted to come back to the office. But reopening has led to only three to four employees showing up per day, he noted.
Across its global offices, Unum has returned approximately 10 to 20% of its employees, Scheckley said. He added that the company found three-quarters of its employee base that had moved remote was as or more productive working remote than in the office, while a quarter of employees were struggling to work remote. Remote challenges for Unum employees included poor or inadequate internet service and caring for children and family members, he said.
1 big unknown: Schools
There is one reopening subject that presenters seemed to have few answers for: what exactly will happen this fall as kids go back to school or are forced to continue distance learning due to school closures or delays?
Designer Brands is still going through brainstorm sessions on the subject, Penland said. A large portion of the retailer's associates are working parents, and many are having trouble dealing with daycare closures. "The truth is, we don't know yet how we're going to work through this," she said. "It's a huge concern for us."
Onik said AbbVie has not found a solution to the school issue, either: "I really hope we can find an answer soon."
There are few legal parameters regarding the issues workers face due to the reopening of schools. The Families First Coronavirus Response Act does provide some relief in the form of paid leave for workers at businesses with fewer than 500 employees, but the law is due to sunset in less than five months. As the school year approaches, the U.S. Department of Labor "encourages employers to be flexible and acknowledge that workers are between a rock and a hard place," Cardi said.
Follow Ryan Golden on Twitter
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| | | ¶47,195 Real average hourly earnings decrease 0.4% over the month in July — SURVEY RESULTS,
(Aug. 13, 2020) from GEA HR Answers Now
Real average hourly earnings for all employees decreased 0.4 percent from June to July, seasonally adjusted, the U.S. Bureau of Labor Statistics reported August 12. This result stems from an increase of 0.2 percent in average hourly earnings being more than offset by an increase of 0.6 percent in the Consumer Price Index for All Urban Consumers (CPI-U).
Real average weekly earnings decreased 0.6 percent over the month due to the change in real average hourly earnings combined with a 0.3-percent decrease in the average workweek.
Real average hourly earnings increased 3.7 percent, seasonally adjusted, from July 2019 to July 2020. The change in real average hourly earnings combined with an increase of 0.6 percent in the average workweek resulted in a 4.3-percent increase in real average weekly earnings over this period.
Production and nonsupervisory employees. Real average hourly earnings for production and nonsupervisory employees decreased 1.1 percent from June to July, seasonally adjusted. This result stems from a 0.4-percent decrease in average hourly earnings combined with an increase of 0.7 percent in the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W).
Real average weekly earnings decreased 1.1 percent over the month due to the change in real average hourly earnings combined with no change in average weekly hours.
From July 2019 to July 2020, real average hourly earnings increased 3.6 percent, seasonally adjusted. The change in real average hourly earnings combined with a 1.5-percent increase in the average workweek resulted in a 5.1-percent increase in real average weekly earnings over this period.
Source: U.S. Bureau of Labor Statistics.
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| | | ¶47,190 NASAA to DOL: Proposed class exemption jeopardizes retirees — AGENCY REGULATION,
(Aug. 12, 2020) from GEA HR Answers Now
The North American Securities Administrators Association (NASAA) has urged the Department of Labor to rescind a rule proposal that would reimplement the DOL’s five-part test for investment advice fiduciaries while also creating a new prohibited transaction class exemption that would allow these fiduciaries to provide conflicted investment advice and receive compensation. In a comment letter opposing the proposal, NASAA wrote that the new class exemption will jeopardize retirement investors and create outcomes that are the opposite of the fiduciary protections that Congress intended under ERISA.
Proposed class exemption. NASAA noted that it had previously supported the DOL’s efforts in adopting the 2016 fiduciary rule that was subsequently vacated by the Fifth Circuit Court of Appeals. As described by NASAA, the DOL’s new proposal would reimplement the five-part test for investment advice fiduciaries that the DOL originally promulgated in 1975. The proposal would also create a new prohibited transaction class exemption that would allow investment advice fiduciaries to provide conflicted investment advice and receive compensation for providing this advice, including advice to roll over a participant’s account from an employee benefit plan to an IRA or from one IRA to another.
Under the proposed exemption, an investment advice fiduciary could meet its obligations under ERISA by complying with the following "impartial conduct standards":
1. A best interest standard;
2. A reasonable compensation standard, including a duty to seek best execution; and
3. A requirement to make no materially misleading statements about recommended investment transactions and other relevant matters.
The proposal would also provide relief from ERISA’s limitations on the ability of firms to engage in principal transactions with customers.
Misleading for investors? NASAA fears, however, that retirement investors will be misled into believing that the advice they receive adheres to fiduciary standards. For example, Section II(b) of the proposed exemption requires financial institutions to acknowledge, in writing, their status as fiduciaries under ERISA and the Internal Revenue Code. The proposal imposes no requirements, however, to describe to investors when fiduciary status does or does not apply. In NASAA’s view, it is likely that firms will frame their disclosures to obscure rather than when describing the circumstances under which fiduciary obligations would not apply to their investment advice.
Conflicted, self-interested advice. Moreover, even when ERISA fiduciary status is triggered, financial institutions and their investment professionals will remain free to offer conflicted, self-interested advice. NASAA observed that a firm and its representatives could earn higher compensation by recommending proprietary products, products from a limited menu, or a group of high cost, high risk, low return products, provided they disclose their conflicts of interest and reach a "reasonable conclusion" that doing so does not create a misalignment of interests. NASAA wrote that although these conclusions will be memorialized in internal policies and procedures, this self-interested reasoning will not be revealed unless and until examinations, enforcement actions, or protracted litigation uncover them.
Source: By John M. Jascob, J.D., LL.M.
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Georgia Department of Public Health COVID-19 Daily Status Report: Updated 3pm daily
Update from 8/13/2020 - Confirmed Cases - 228,668
- Deaths - 4,538
- Hospitalizations - 21,581
- ICU Admissions - 3,963
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Georgia Employers' Association |
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