| Special #69 - September 15, 2020 |
| | Strategic HR Leadership Series Training Workshop (Starts back in-person on Oct. 13th)
& 2020 Leadership Training Series
(Starts back in-person on Sept. 23rd)
Registration is still available for both Series
We at the GEA apologize for having to postpone this series due to the COVID-19 crisis but We are dedicated to delivering this series in full before the end of the year
Visit our Website for an overview of our workshops and to register or
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| HR and Employment Law News |
| - Constangy.com News & Analysis: Revised FFCRA regulations to take effect on Wednesday
9.14.20 - Constangy.com Blog: Annual verification proposed for contractors BY CARA CROTTY ON 9.15.20POSTED IN AFFIRMATIVE ACTION- HRDive.com Article: If COVID-19 accelerates automation, how can training keep up? PUBLISHED Sept. 15, 2020
- HRDive.com BRIEF - DOL revises FFCRA rules in response to court ruling PUBLISHED Sept. 14, 2020
- Georgia Department of Public Health COVID-19 Daily Status Report
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| Constangy.com News & Analysis: Revised FFCRA regulations to take effect on Wednesday
By Robin Shea / Winston-Salem Office
9.14.20
In August, a federal judge in New York vacated portions of the regulations interpreting the Families First Coronavirus Response Act. It was not clear at first what the response of the U.S. Department of Labor would be. Among other options, it could have appealed the decision, or it could have issued revised regulations.
About a week ago, Bloomberg Law reported that the DOL was going to revise its regulations to address the issues raised in the court’s decision. And this past Friday, the revisions were issued.
The revised regulations will take effect on Wednesday, September 16.
With one exception, the changes are not dramatic. For the most part, the DOL respectfully disagreed with the court, provided more explanation of the rationale for the existing regulations, and made minor tweaks or corrections.
However, health care employers should note that the “health care provider” exclusion from FFCRA eligibility has been significantly narrowed. As a result, health care employers who are subject to the FFCRA -- either because they have fewer than 500 employees or because they are public-sector employers -- will no longer be able to take advantage of a blanket exclusion of all employees from FFCRA eligibility.
“Health care provider” exclusion is narrowed
The FFCRA gave the Department of Labor authority to exclude from eligibility “health care providers.” The original FFCRA regulations had a broad definition of “health care provider” that included, not only individuals who provided care to patients, but also those who supported the caregivers -- including, arguably, IT workers, Human Resources, other administration, and food services workers and custodians.
The court’s decision said that the DOL’s definition of “health care provider” was overbroad and invalid. The revised regulations provide a more narrow definition of “health care providers” who can be ineligible for FFCRA leave. First, anyone who qualifies as a “health care provider” under the FMLA regulations can be excluded. This would include physicians, some chiropractors, osteopaths, and nurse practitioners. In addition, the FFCRA exclusion will apply to employees who are “employed to provide” diagnostic, preventive, or treatment services, “or other services that are integrated with and necessary to the provision of patient care.” This includes nurses, nurse assistants, medical technicians and laboratory technicians (viewed on a case-by-case basis), and similar categories of employees.
“Integrated” services include bathing, dressing, feeding, and other tasks related to patient care.
The revised regulations specifically exclude employees whose work is administrative, related to food services (as opposed to feeding patients), or building maintenance.
As a result of this change, health care employers who are covered by the FFCRA but considered it a moot point because their entire workforce was “ineligible” under the original regulations, will have to quickly learn about the FFCRA and ensure that they are correctly applying it to the employees who are now eligible.
“Work available” requirement
The original FFCRA regulations provided that paid leave could not be taken unless work was otherwise available. For example, if an employer closed its facility because of a government shutdown order, none of the employees would be eligible to take paid FFCRA leave. On the other hand, if the employer was operating but an employee had an FFCRA-qualifying condition or situation, the employee would be eligible for paid leave.
The court’s decision found that the DOL had not provided enough of an explanation for the "work available" requirement. It also found that the regulations applied only to certain categories of FFCRA leave with no explanation as to why the other categories were treated differently.
The DOL’s response was to provide more explanation for the “work availability” requirement in the revised regulations, and to expand the requirement to all six categories of FFCRA leave – which it said it had intended to do all along.
Documentation and notice of need for FFCRA leave
There was a minor change to the portion of the regulations relating to employee notice and documentation of the need for FFCRA leave. The revised regulations provide that the employee does not have to provide notice to the employer of a request for leave before the leave begins but “as soon as practicable.” If the leave is foreseeable, the DOL still expects the notice to be provided “as soon as practicable” and generally expects that this will be before the leave begins.
Documentation in support of a request for FFCRA leave must be also be provided “as soon as practicable.”
Employer permission for intermittent FFCRA leave
The original regulations provided that employees could not take FFCRA leave intermittently if the leave was because of the employee’s COVID-19 or symptoms, because the employee was caring for someone with COVID-19 or its symptoms, or under the “catchall” provision (Reasons 1-4, and Reason 6), and if the employee had to work on site. But in the case of a school closing (Reason 5) or if the employee out of work for one of the other reasons was teleworking, the employee could take intermittent leave if the employer agreed. In the revised regulations, the DOL keeps these rules but provides more of a rationale.
First, the DOL noted that the FFCRA statute was silent about intermittent leave but gave broad regulatory authority to the DOL. The primary rationale for the restriction on on-site employees taking leave for Reasons 1-4 and 6 is to prevent potential exposure of co-workers and others to COVID-19. In the case of leave for Reason 5 or employees who can telework, the employee poses minimal, if any, risk to co-workers. In these circumstances, the employee’s need for intermittent leave can be balanced against the employer’s need to minimize the disruption to its operations, similar to the Family and Medical Leave Act when the leave is not for a serious health condition. (For example, under the FMLA, “baby bonding” leave cannot be taken on an intermittent basis unless the employer agrees.) This same reasoning should apply to intermittent leave for school closings under the FFCRA, according to the Department of Labor.
The DOL did specifically note that time off for alternate-day school schedules is not “intermittent” leave and can be taken without the permission of the employer. (For example, if a school is having in-person classes on Monday-Wednesday-Friday and remote learning on Tuesday and Thursday, it would not be “intermittent” FFCRA leave if the parent took leave on Monday, Wednesday, and Friday. In other words, the employer’s consent to the schedule would not be needed in this circumstance.)
For a printer-friendly copy, click here.
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| | | Constangy.com Blog: Annual verification proposed for contractors
BY CARA CROTTY ON 9.15.20
POSTED IN AFFIRMATIVE ACTION
Read online>>The OFCCP seeks an online certification process.
The Office of Federal Contract Compliance Programs has issued an Information Collection Request seeking comments on “an annual Affirmative Action Program online certification process for federal contractors. . . .”
The online portal would be called the Affirmative Action Program Verification Interface, or AAP-VI. The portal would also provide contractors “a secure method” for submitting affirmative action plans to the OFCCP during a compliance evaluation.
The impetus of this proposal is a 2016 report by the Government Accountability Office, which recommended that the OFCCP develop a process for regular monitoring of contractor compliance.
According to the proposal, the OFCCP would require all covered contractors and subcontractors to use AAP-VI to select one of the following responses on an annual basis:
Entity has developed and maintained affirmative action programs at each establishment, as applicable, or for each functional or business unit. See 41 CFR Chapter 60.
Entity has been party to a qualifying federal contract or subcontract for 120 days or more and has not developed and maintained affirmative action programs at each establishment, as applicable. See 41 CFR Chapter 60.
Entity became a covered federal contractor or subcontractor within the past 120 days and therefore has not yet developed applicable affirmative action programs. See 41 CFR Chapter 60.
The OFCCP plans to send an email to each known contractor establishment meeting the monetary and employee thresholds requiring the development of an AAP. Notification would also be posted on the agency’s website advising about the annual certification requirement.
Generally, the system would work as follows:
Contractors would create an account within the AAP-VI system.
Users would be granted authorization to access the system through a unique company identifier.
Contractors would confirm basic company information that typically appears on the EEO-1 Report, such as establishment name, parent company, unit number, federal employer identification number, etc.
If selected for a compliance evaluation, contractors would upload AAPs using the AAP-VI system.
Contractors would certify on an annual basis to one of the three responses noted above.
Contractors would be provided 90 days to complete the certification process once AAP-VI goes into effect. Thereafter, the “OFCCP [would] set a date by which all existing contractors must renew their annual certification.” Entities that become contractors after AAP-VI becomes effective would be required to complete the certifications within 90 days after developing their AAPs. (Employers are granted a 120-day window to develop AAPs after becoming covered by the regulations.)
The OFCCP notes that AAP-VI would allow it “to run a comprehensive and informative report identifying the AAP status of covered federal contractors.” Presumably, the agency would use this data to select contractors for compliance evaluations. Contractors who fail to certify, or who select option #2, may be most likely to be considered non-compliant.
The OFCCP has long sought methods for identifying contractors who are most likely to be in violation of its laws so that they can be targeted for enforcement, and this may provide a vehicle to achieve that. However, the proposal does not specifically address the consequences for failing to certify or for responding that AAPs have not been appropriately prepared.
The OFCCP has requested comments on AAP-VI that address the following:
The proposed frequency and level of information to be collected.
Whether the proposed collection of information is necessary for the enforcement and compliance assistance functions that support the agency's compliance mission, including whether the information will have practical utility.
The accuracy of the estimated burden of the proposed collection of information, including the validity of the methodology and assumptions.
The quality, utility, and clarity of the information to be collected.
How to minimize the burden for those responding, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
One issue that the proposal does not seem to anticipate is the inevitable window of time between the expiration of an AAP on its plan date and the development of the next AAP. Depending on the size of the establishment and the number of AAPs that a contractor must develop, the process for developing new AAPs can take weeks or even months. Further, some multi-establishment contractors develop AAPs throughout the year for their different locations and are thus in a constant state of renewing AAPs. The OFCCP’s proposal does not indicate whether contractors that are in the “in-between” stage of re-developing expired AAPs would be able to accurately certify that they have “developed and maintained affirmative action programs at each establishment . . . ” for the applicable annual cycle.
If implemented, AAP-VI will certainly create greater incentives for contractors to ensure that AAPs are updated annually and in a timely fashion. We will continue to monitor the agency’s actions and report further developments here.
Comments to the OFCCP’s proposal are due by November 13, 2020.
Tags: AAP-VI, OFCCP, Office of Federal Contract Compliance Programs
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| | | HRDive.com Article: If COVID-19 accelerates automation, how can training keep up?
Training must be focused on reskilling, but employers also need to show "heart" as they prepare the workforce for change, a Verizon executive told HR Dive. AUTHOR Ryan Golden @RyanTGolden
The COVID-19 pandemic has introduced a number of challenges for workers, but it also may be aggravating existing challenges. Automation is one of them, according to some researchers, consultants and policymakers.
COVID-19 "has the potential to accelerate the process of automation, as employers substitute workers with computers and robots that are unaffected by pandemics," according to a July working paper published by the National Bureau of Economic Research.
Specifically, the paper's authors found that the "American Heartland" region had the highest concentration of automatable jobs, although occupations with "high viral transmission risk," which tend to be in the service sector, "are required in all local economies." Women are twice as likely as men to work jobs that are at high risk of both COVID-19 transmission and automation, the authors said. Women with some postsecondary education but less than a bachelor's degree were the subgroup in the analysis with the highest risk of both transmission and automation.
Such automation is beginning to emerge even in industries outside the service sector. Pharmaceutical manufacturer Takeda, for example, recently used robotic process automation software to speed up paperwork processing for patients in a clinical trial for a COVID-19 treatment, and the company now plans to "train thousands of staff to build and use software bots for themselves," Wired reported in June.
The promise of a 'bionic organization'
Examples similar to Takeda's are a sign of what’s to come, according to a recent white paper published by Verizon and Boston Consulting Group. The firms argue that the pandemic "is forcing change at an exponential rate," further integrating technology into business operations and changing employee expectations for areas like engagement, flexibility and technology.
The paper's authors also said that these shifts mean employers will place more emphasis on creating a "bionic organization" in which "technology and data fuse with humanity."
"Previously, organizations have spent all their time on standardization [and] routines,” said Sampath Sowmyanarayan, president of global enterprise at Verizon Business and one of the paper’s co-authors. "In the future they're going to say, 'how do you enable creative productivity and creativity to solve problems that don't exist today?'"
A bionic organization emphasizes intellect and sound decision-making, but it also values what Verizon and Boston Consulting Group called "the heart," or the act of inspiring and empowering employees through culture.
There are obstacles to providing such a culture, however. Workers have a variety of digital tools at their disposal, perhaps even more so during the pandemic with the rise of tools that enable remote work and flexible work schedules. But managerial and leadership styles have not evolved alongside these shifts, Sowmyanarayan said.
"That causes burnout," he added. "It's like ten pounds of s--- in a five pound bag, and at some point the bag breaks. We have to address that up front."
The remote-work environment provides several opportunities to do so, Sowmyanarayan said. Employers can, for instance, humanize virtual meetings that lack a conventional human touch. They might also recognize that it can take longer to complete certain projects in such an environment. "If you're trying to launch a new product … it's significantly more difficult in a remote-only world."
Another managerial tip is to focus on employees' output of work, rather than the hours they input, Sowmyanarayan said. That goes in tandem with being flexible about work hours and increasing one-on-one time with managers. "We have to change our managerial styles to this new era, and I don't think we've changed [them] enough."
Training that keeps pace with automation
Corporate training also has room for improvement because such programs generally have not been the most effective at medium-term skill development, Sowmyanarayan said; "At the core, most corporations worry about training what's relevant for them as opposed to what's relevant for the employee."
Training programs could focus more on broad reskilling rather than on individual technologies or systems, he added. Delivery is also important to keep in mind. Sowmyanarayan said he subscribes to an SMS-based training program, and there are a variety of other training platforms — including virtual reality and augmented reality — that learning and development experts view as increasingly viable for skill development in the next decade.
With attention spans limited and distractions increased as a result of the move to remote work, employers will also need to tweak techniques, Sowmyanarayan said. "You can't take techniques that worked in classrooms and then move it onto online and expect the same results; it just doesn’t work."
He also further distinguished "knowledge training," or becoming smarter on a specific technology or platform, from "skills training," or training on something broader that allows workers to be more effective at their jobs. "Everyone's focused on the first, not on the latter," Sowmyanarayan said. "The second one is also difficult for employees because the ROI on skills training is not always apparent up front."
Employees need to have vision as well as the thirst to learn, he continued. "Otherwise their head is not in the game."
The continuous nature of learning also may be important. "People think learning is a one and done — not at all. You’ve got to keep learning," Sowmyanarayan said, though he acknowledged this can be difficult for workers to accomplish when facing burnout.
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| | | HRDive.com BRIEF - DOL revises FFCRA rules in response to court ruling
AUTHOR Ryan Golden@RyanTGolden
PUBLISHED Sept. 14 2020, 2:00 p.m. EDT
Dive Brief:
- The U.S. Department of Labor updated the definition of "health care provider" within its regulations implementing the Families First Coronavirus Response Act in response to an August federal court ruling that struck down aspects of the rule, DOL announced via a temporary rule published in the Federal Register Sept. 11.
- Among the changes is a revision of DOL's definition of which healthcare providers an employer may exempt from taking FFCRA leave. The revised definition "expressly states that an employee is a health care provider if he or she is 'capable of providing health care services.'" DOL said such providers must be "employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care."
- The rule also addressed other provisions struck down by the court, namely clarifying that employees need not provide the documentation required for taking FFCRA leave before taking the leave. Instead, this documentation "may be given as soon as practicable," DOL said.
Dive Insight:
The changes have "an immediate impact" on healthcare employers, "particularly those that have exempted some or all of their employees from FFCRA leave as a result of the DOL's initial sweeping rule," management-side attorneys with Littler Mendelson wrote in an analysis of the update. DOL's revisions take effect Sept. 16, according to a statement.
DOL's updated healthcare provider definition delineates whom an employer may exclude from taking emergency paid leave under the FFCRA. The term "health care services" in this context "is best understood to encompass a broader range of services than, as in the FMLA context, primarily those medical professionals who are licensed to diagnose serious health conditions," the agency said.
- Specifically, this definition includes those capable of providing:
- Diagnostic services, such as taking or processing samples, performing or assisting in the performance of x-rays or other tests or procedures and interpreting their results.|
- Preventative services, such as check-ups, counseling and screenings to prevent illnesses, disease or other health problems.
- Treatment services, such as performing surgery or other invasive or physical interventions, administering or providing prescribed medication, or providing or assisting in breathing treatments.
- Services that are integrated with the above services, including bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures and transporting patients and samples.
The definition also includes workers who provide such services under the supervision, order or direction of — or provide direct assistance to — a healthcare provider. It also includes workers, such as laboratory technicians, who may not directly interact with patients or who might not report to another health care provider or directly assist another health care provider, but who provide services that are integrated with and necessary components to the provision of patient care.
However, the definition does not include workers who do not provide healthcare services — such as information technology professionals, building maintenance staff, HR personnel, cooks and food service workers, among others — even if the services provided by these workers "may be related to patient care."
The above examples are non-exhaustive, DOL said.
DOL notably reaffirmed its requirement that workers who seek to take paid leave under the FFCRA leave may only do so if they would otherwise have work available to them, despite this component being struck down in the August federal court ruling. The updated work-availability rule "enjoys a much stronger chance of surviving legal challenge in the future," the Littler Mendelson attorneys said.
Follow Ryan Golden on Twitter |
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Georgia Department of Public Health COVID-19 Daily Status Report: Updated 3pm daily
Update from 09/15/2020 (State of Georgia)
Confirmed Cases 296,833
Deaths 6,398
Hospitalizations 26,665 ICU Admissions 4,870 Visit Georgia Department of Health website for more information:
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Georgia Employers' Association |
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