| Special #73 - October 15, 2020 |
| | This series is designed for HR Professionals New to the Field & Experienced HR Professionals |
| | Strategic HR Leadership Series (Registration is available for these in-person workshops)
HR leaders make a significant impact on their organizations’ success. But in our rapidly changing business environment – whether you’re new to human resources or an HR veteran – it’s important to be up to date with best practices, innovative strategies and proven techniques....Read More>>
This Workshop Series will: - Introduce multiple HR ‘best practice’ initiatives within the six core disciplines of HR
- Provide you with employment law updates
- Allow you to interact with and learn from other HR professionals
- Place an emphasis on and assist you in developing a personal follow through action plan that you can apply on the job
Schedule - Functioning as a Human Resource Strategic Business Partner
October 30, 2020 9:00 AM – 12:00 PM
- Practical Techniques to Enhance Your Training
& Facilitation Skills
New Date! December 04, 2020 9:00 AM – 12:00 PM
- Positively Impacting Employee Behavior through Performance Appraisals, Coaching & Counseling
November 27, 2020 9:00 AM – 12:00 PM
- Utilizing HR Metrics to Illustrate & Improve HR's
December 15, 2020 9:00 AM – 12:00 PM
- Employment Law Essentials with Constangy, Brooks, Smith & Prophete Attorneys
Date TBD 9:00 AM – 12:00 PM
Visit our website to view the overview of workshops
Location of Workshops, unless otherwise noted, to be conducted at:
Cherry Blossom Room (16th Floor)
Fickling & Company Building
577 Mulberry St , Macon, GA 31201
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| HR and Employment Law News |
| - Constangy.com News & Analysis - Top 5 things you should know about Canada-U.S. travel 10.8.20- HRDive.com Mailbag: Can we require that employees receive a COVID-19 vaccine? PUBLISHED Oct. 12, 2020
- HRDive.com BRIEF - DOL tackles questions about D&I training limits in FAQ document PUBLISHED Oct. 14, 2020- Constangy.com News & Analysis - What you need to know about the October 2020 Visa Bulletin 10.2.20- ¶47,352 Employers exploring new tactics for this year’s open enrollment, survey finds — SURVEY RESULTS, (Oct. 13, 2020)- HRDive.com Article - The 'grand experiment': CHROs share lessons learned during the pandemicPUBLISHED Oct. 14, 2020- Georgia Department of Public Health COVID-19 Daily Status Report
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Constangy.com News & Analysis - Top 5 things you should know about Canada-U.S. travel
By Will Krasnow / Boston Office & Punam Rogers / Boston Office
10.8.20
Concerns about the spread of COVID-19 led U.S. and Canadian officials to agree that non-essential travel across the land ports of entry along the border should be temporarily suspended. These restrictions have since been extended, most recently until October 21.
Here are the top five things to know about traveling from Canada to the United States:
1: Fly if you can. The travel restrictions apply only to land ports of entry, including entry by passenger rail and ferry. They do not apply to travel by air, sea, or freight rail. The restrictions apply only to the land ports of entry (including passenger rail and ferry travel). Moreover, even travel across the land border by motor vehicle, passenger train, or ferry is not closed entirely -- rather, entry is limited to those entering the United States for “essential travel.” Tourism is the only purpose that the restrictions define specifically as non-essential. Most land ports of entry will require proof of essentiality. On the other hand, if you fly, you are likely to be asked only for a verbal response regarding the essentiality of your travel.
2: If you can, make sure your travel is “essential.” For the most part, anyone flying from Canada to the United States to work will not have an issue if they have appropriate documentation. Here are the categories that may be admitted:
- U.S. citizens and lawful permanent residents returning to the United States.
- Individuals traveling to attend educational institutions.
- People traveling to receive medical treatment.
- Individuals traveling for emergency response and public health purposes (e.g., government officials or emergency responders entering the United States to support Federal, state, local tribal, or territorial government efforts to respond to COVID-19 or other emergencies).
- Individuals traveling to work in the United States (e.g., individuals working in farming, or in the agriculture industry, who must travel between the United States and Canada in furtherance of their work).
- Individuals engaged in lawful cross-border trade (e.g., truck drivers supporting the movement of cargo between the United States and Canada).
- Official government/ diplomatic travel.
- Members of the U.S. armed forces and their spouses and children who are returning to the U.S. or who are engaged in military-related travel or operations.
- In practice, most ports of entry consider employment-based primary beneficiaries (such as TN/TD, H-1B/H-4, or L-1/L-2) and their dependents to be “essential” if they are traveling in connection with that status.
3: Bring documentation. Routine adjudications of TN applications and L-1 petitions at the port of entry are continuing, although some land ports are requiring proof that the proposed employment is in an essential industry, or that the work the foreign national will perform is essential. It is important to carry documentation to evidence this.
4: It’s generally all right for Canadians to “flag-pole” back to the United States. Despite Canada’s Quarantine Act, Canadian citizens currently in the United States may “flagpole.” That means they may return to Canada, make a U-turn while not leaving their vehicles, and apply at the U.S. border or port of entry for a TN or L visa. Under the Canadian Quarantine Act, anyone who is allowed to enter Canada must self-isolate for 14 days unless flag-poling. It is important to check the specific port of entry before travelling to do this.
5: File online for U.S. nonimmigrant waivers. The U.S. Customs and Border Protection has limited the locations at which Canadian citizens can apply for nonimmigrant waivers on Form I-192. Online filing is encouraged.
For a printer-friendly copy, click here.
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| | | HRDive.com Mailbag: Can we require that employees receive a COVID-19 vaccine?
The answer "is far from clear," one management-side attorney told HR Dive.
PUBLISHED Oct. 12, 2020
In HR Dive's Mailbag series, we answer HR professionals' questions about all things work. Have a question? Send it to hr.dive.editors@industrydive.com.
Q: Can we mandate that employees receive a COVID-19 vaccine?
A: This may be the most significant question employers across the country will face in the coming months, management-side attorneys told HR Dive. But "the answer is far from clear," David L. Barron, member at Cozen O'Connor, said in an email.
Employers might look to guidance from federal agencies like the U.S. Equal Employment Opportunity Commission. The EEOC's 2009 guidance document on pandemic preparedness and the Americans with Disabilities Act, released during the H1N1 influenza pandemic and updated this year during the COVID-19 pandemic, said that an employer covered by the ADA may not compel all of its employees to receive an influenza vaccine regardless of their medical conditions or religious beliefs.
In fact, employees may be exempt from an influenza vaccine requirement based on an ADA-covered disability that prevents them from receiving the vaccine, which "would be a reasonable accommodation barring undue hardship," per the agency. Employees who have a sincerely held religious belief, practice or observance that prevents them from taking an influenza vaccine must be provided a reasonable accommodation, unless it would pose an undue hardship — i.e., "more than a de minimis cost" — to the operation of the employer's business.
"Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it," EEOC said.
But that guidance alone may not settle the question of mandating a vaccine for COVID-19, said Barry Hartstein, shareholder at Littler Mendelson and co-chair of the firm's EEO and diversity practice group. From an ADA perspective, the EEOC takes the view that a vaccination is equivalent to a medical examination, he explained, and an employer may only give such exams if they are job-related and consistent with business necessity.
In the healthcare industry, employers routinely require employees to receive vaccines like the influenza vaccine, Hartstein said, but those operating outside that context may not be able to meet the ADA's standard. COVID-19, however, may present a different scenario.
"The one reason why the courts may be a little more supportive dealing with a COVID-19 vaccine and making it permissible, is because we're dealing with a pandemic which in and of itself creates a direct threat to all employers, for anyone who has COVID or the symptoms of COVID," Hartstein said. "So an employer may actually be able to withstand the appropriate standard and actually require it, but you're still going to have to make a reasonable accommodation for some."
Furthermore, employers would still be unable to require such a vaccination before a conditional offer of employment is made, and they could not make the vaccination a part of the application process, he noted.
There are other considerations, too, particularly for workplaces with labor unions. Hartstein noted questions as to whether employers could issue a vaccine mandate without first bargaining with unions. This may be possible assuming that an employer has a management-rights clause in its labor contract, Hartstein said, but the employer may still need to bargain over such aspects as what classes of employees would be subject to vaccination, how frequently such vaccination would be done and what happens if an employee refuses, among others.
And even in a non-union setting, Hartstein said employers will likely need to contend with protected concerted activity in the workplace with respect to vaccination requirements. This may be a particular concern in cases where employees argue that a COVID-19 vaccine is dangerous or likely to cause harm, Barron said; "Employees who band together and refuse to be vaccinated may enjoy protections under federal and state laws for protesting unsafe work rules."
Consider the nature of the vaccine
That point highlights much of the unknowns surrounding the potential development and roll out of a vaccine. For example, it is unclear what the effectiveness and side effects of a potential vaccine are at this time, Hartstein said. Employers may need to research to determine whether the vaccine's effectiveness varies depending on a person's health status or age, he noted, or whether there are negative side effects.
"I think there is going to be a certain level of pushback," Hartstein said, adding that recent anti-vaccination movements may create issues for employers. If an employer decided to fire a group of employees who protest such a vaccination policy, it could end up before the National Labor Relations Board, he added, because this type of protest could be protected activity.
It is not yet known when a vaccine for COVID-19 will be available nor how quickly it will be available to employees, Hartstein said. Documents from the Centers for Disease Control and Prevention indicate that a COVID-19 vaccine would be administered in a "phased approach," with the first phase limited to healthcare personnel and a group that "may include" essential workers, adults over age 65 and those with high-risk medical conditions.
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| | Disclaimer: Use of material does not imply endorsement by CDC. Material available at CDC website free of charge. From Centers for Disease Control and Prevention.
"We're certainly not anticipating that we're going to have it widely available at least until next summer," Hartstein said.
Employers may need to keep in mind that this is an evolving area, he added, noting EEOC itself has said it is looking to organizations like the World Health Organization, CDC and the U.S. Department of Health and Human Services. "You've got to look to the science," Hartstein said. "We should be looking for the best advice that we can get."
Alternative approaches
In short: while the answer to the question of "can" employers mandate a COVID-19 vaccine may be "yes, with a whole series of asterisks," according to Hartstein, the answer to the question of "should" employers do so is a lot more complicated.
"Until we have greater answers and more answers … I'm not convinced that it's prudent to do it," Hartstein said.
Employers, as the EEOC said in its guidance, could instead encourage employees to receive a COVID-19 vaccine, or offer incentives to do so, Barron said.
Hartstein said he hasn't seen the issue of incentivizing a vaccine within the context of a voluntary wellness program come up in discussions with employers, but he said employers must keep in mind that such programs must be voluntary in accordance with the ADA. "Assuming you can pass that threshold then you may get to the question such as, do you want to provide additional incentives," he added. "That may be something for employers to further evaluate."
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| | | | HRDive.com BRIEF - DOL tackles questions about D&I training limits in FAQ document
PUBLISHED Oct. 14, 2020
Dive Brief: - The U.S. Department of Labor's Office of Federal Contract Compliance Programs published guidance last week implementing President Donald Trump's executive order prohibiting federal contractors and other entities from promoting "race or sex stereotyping or scapegoating" within their workplace diversity and inclusion training programs.
- The guidance, presented in a question-and-answer format, lists several examples of race or sex stereotyping or scapegoating — both of which are defined in the executive order — including concepts that a person is inherently, whether consciously or unconsciously, racist, sexist or oppressive by virtue of his or her race or sex; bears responsibility for actions committed in the past by other members of the same race or sex; or should feel discomfort, guilt, anguish or any other form of psychological distress on account of his or her race or sex, among other points.
- OFCCP directed those who wish to file a complaint about a training program that violates the order to a new hotline that can be accessed via phone or email. The requirements will apply to contracts entered into 60 days after the order, or Nov. 21, but OFCCP said it "may investigate claims of sex and race stereotyping pursuant to its existing authority under Executive Order 11246." The agency also said it plans to take an initial rulemaking step — the publication of a Request for Information — next week.
Dive Insight: The guidance forms a piece of the administration's follow-up to the Sept. 22 executive order in which Trump prohibited "divisive concepts," such as sex or race stereotyping or scapegoating, from being included in training programs run by U.S. uniformed services, federal agencies and recipients of federal grants, in addition to federal contractors and subcontractors.
The administration's terminology, specifically its use of the terms "sex or race stereotyping or scapegoating," is "unusual," said Marilyn Fish, partner at Bryan Cave Leighton Paisner. "That's not typically something that I see referred to very frequently in the existing case law or regulations."
Generally, the administration's references — both within the OFCCP guidance document and the executive order — to concepts such as white privilege, past actions of prior members of a race or sex and similar issues "are not typically found in non-discrimination law," Fish said. "This is really taking it all a step further than we would typically find out there in existing equal employment or even existing affirmative action laws."
The document's publication follows public discussion of the administration's decision; the executive order became a topic of discussion in this year's first presidential debate, in which Trump defended an earlier, similar directive prohibiting certain training programs. "We were paying people hundreds of thousands of dollars to teach very bad ideas and frankly, very sick ideas," the president said during the debate.
Recent news suggests OFCCP is already moving in a similar direction. Microsoft Corporate Vice President and General Counsel Dev Stahlkopf said Oct. 6 that OFCCP had contacted the company "regarding some of the commitments we made in June to address issues faced by the Black and African American community."
The agency's letter suggested that a Microsoft training initiative "'appears to imply that employment action may be taken on the basis of race,'" and it asked Microsoft to prove the company's actions were not illegal race-based decisions, according to Stahlkopf. "Emphatically, they are not," she said.
The guidance document also "seems to cast an agenda for the OFCCP that perhaps highlights concepts of reverse discrimination … in other words discrimination against Whites and against males," Fish said, even though the document itself does not specifically refer to reverse discrimination. "It's not outside the realm of their responsibility to investigate a concern of discrimination against Whites or against males. It's not typically what you would see."
Should OFCCP investigate and later discover instances of race or sex stereotyping or scapegoating within an employer's training program, the most likely outcome is that it would decide to allow the contractor an opportunity to revise the training rather than implementing a more severe enforcement action, Fish said.
Additionally, Fish said she believes contractors should continue with their scheduled D&I training programs while also acknowledging that "it's probably wise" for contractors to examine the concepts explored in such programs "at a high level" to determine whether they would violate the executive order.
"Although the executive order causes some contractors to be concerned, I think that you can't lose sight of the fact of the importance of continuing to advocate for a very strong training program for non-discrimination," she said.
Correction: An earlier version of this story misspelled Fish's name and Stahlkopf's name. HR Dive regrets the error.
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| | | | | Constangy.com News & Analysis - What you need to know about the October 2020 Visa Bulletin
By Will Krasnow / Boston Office & Punam Rogers / Boston Office
10.2.20
The U.S. Department of State recently released its October 2020 Visa Bulletin reflecting an all-time high allocation of approximately 261,500 employment-based immigrant visas and signaling an unusually quick advancement of visa numbers in employment-based categories for the first quarter of the fiscal year. For many individuals who have waited years to file the last step of the permanent residence process, this bulletin provides welcome news.
What is a visa bulletin?
The U.S. Department of State issues a visa bulletin every month to notify U.S. Embassies and Consulates and interested parties when immigrant visa applications for both employment and family-based categories may be filed abroad and when adjustment of status (I-485) applications may be filed domestically with the U.S. Citizenship and Immigration Services. It also sets the date when these applications are eligible to be approved.
What is new in the October 2020 Visa Bulletin?
Because the federal government’s fiscal year begins on October 1, October visa bulletins often contain substantial changes, such as an amended allocation of visas in the employment-based immigrant visa categories. However, 2020 has been a particularly unusual due to the COVID-19 pandemic and various presidential proclamations relating to immigration. Further, the USCIS’s decision to accept filings based on the filing date will allow filings at a level not seen since 2007. Thus, the October 2020 Visa Bulletin reflects an unusually quick advancement of visas for employment-based categories.
Why are the employment-based categories advancing so rapidly?
As the American Immigration Lawyers Association recently observed, “The continued impact of the pandemic and travel bans has resulted in the unprecedented situation of zero movement in October 2020 in the final action dates for the family-based preference categories. Per the October 2020 bulletin, this is because movement in the family-based final action dates during the last six months, coupled with the suspension of routine visa processing at consular posts, have resulted in enough accumulated demand to fully utilize the numbers normally made available through the first quarter of the fiscal year.” Under the Immigration and Nationality Act Section 201(d)(1)(B), these unused family-based numbers are added to the fiscal year 2021 employment-based immigrant visa allocation, resulting in an all-time high allocation of approximately 261,500 employment-based immigrant visas.
What can we expect in the coming months?
The October bulletin also included projections from the U.S. Department of State for the potential rate of monthly advancement through January 2021 for final action dates. Worldwide (including El Salvador, Guatemala and Honduras, Mexico, Philippines, and Vietnam), the final action dates are expected to remain current for the next few months, with rapid forward movement likely for EB-1 China and EB-1 India. Similarly, EB-2 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, Philippines, and Vietnam) is expected to remain current for the next few months, with rapid forward movement (most likely at the pace of months rather than weeks) likely for EB-2 China and EB-2 India. EB-3 Worldwide, EB-3 Mexico, and EB-3 Philippines (and EB-3 Worldwide Other Workers) are also expected to be current, with rapid forward movement expected in EB-3 China and EB-3 India. Steady forward movement is anticipated for EB-3 China Other Workers. Finally, EB-4 is expected to be current for most countries, with the exception of EB-4 El Salvador, Guatemala, and Honduras, and EB-4 Mexico, which are expected to experience steady forward movement.... Read more online >>
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| | | | ¶47,352 Employers exploring new tactics for this year’s open enrollment, survey finds — SURVEY RESULTS,
(Oct. 13, 2020) from GEA HR Answers Now
As if open enrollment wasn't already challenging, 2020 is throwing employers and employees for a loop. The latest International Foundation of Employee Benefit Plans survey report, Trends in Benefit Open Enrollment and Communication 2020, asked U.S. employers about pandemic-related changes impacting staff communication and implementation for this year's open enrollment.
In the height of a health pandemic, familiarity with health benefits is essential but only one-third of employees (34%) have a high level of understanding of theirs. Over half (52%) have a medium level of understanding, and 15 percent have a somewhat or very low level of understanding. Employers are pivoting their efforts this year by using new virtual tactics and topic-driven communication.
Going virtual. The COVID-19 pandemic has caused organizations to make some major adjustments to how their open enrollment process will operate. About one in five (21%) organizations have made changes to their open enrollment procedures because of the pandemic, and nearly all the changes involve shifting from an in-person experience to a virtual option.
"We've heard from many organizations that in-person meetings and benefit fairs have been canceled or moved to a virtual space," said Julie Stich, CEBS, VP of Content at the International Foundation. "Organizations are reducing printed materials (like posters and signage) and instead sending more emails or mailing information to participants' homes. Many are getting creative by making videos or developing more interactive websites to educate workers about their choices and the open enrollment process."
Developing solutions for nonwired/deskless workers. Several organizations indicated they were concerned about communicating open enrollment information with deskless/nonwired workers (workers without regular access to a computer or email), especially considering the absence of face-to-face events this year.
"One employer shared with us that some of their employees don't have access to a computer to complete the enrollment process—those computers are normally provided during benefit fairs, which are going virtual this year," said Stich.
Of organizations with deskless/nonwired workers, 43 percent find it challenging to communicate to that population.
"Whether it's providing a mail-in option this year or modifying face-to-face events to accommodate social distancing recommendations, these organizations are working to find new solutions for their workers," Stich added.
Emphasizing COVID-19-related topics. The number one challenge facing employers has held steady for the past five years, regardless of the COVID-19 pandemic: Employees do not open and read communication materials or access resources, reported by 76 percent of employers who took the survey.
To further encourage employees to read their open enrollment materials, employers are focusing on more COVID-19-related topics when communicating benefits this year. Most employers (87%) said their main topic of focus is health care, including telehealth/telemedicine benefits. Noting the importance of mental health resources during this time of uncertainty, 72 percent are communicating specifically about mental health benefits as well. Organizations are also emphasizing employee assistance programs and flexible work arrangements.
Examining health care options. Most organizations stated that the average participant will continue to have the same number of health plan choices available to them as they did in 2020. Nearly all organizations will maintain or increase access to virtual health care options in 2021. However, most (70%) organizations anticipate that the cost of health benefits for average plan participants will increase compared to 2020.
SOURCE: www.ifebp.org
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| | | HRDive.com Article - The 'grand experiment': CHROs share lessons learned during the pandemic
"The once seemingly impossible became quickly possible," Krispy Kreme's Terri Zandhuis said.
AUTHOR Sheryl Estrada PUBLISHED Oct. 14, 2020
The COVID-19 pandemic provided company leadership an opportunity to evaluate and implement processes that were once seen as impossible, the CHROs of Dow Jones, Krispy Kreme, Sealed Air and CommScope discussed during a virtual roundtable Oct. 8.
During Championing the Future of Work: The CHRO's New Mandate, a webinar hosted by Summit Leadership Partners, a leadership advisory firm, HR leaders reflected upon how the pandemic — and the subsequent pivot to telework — affected employee-focused practices at their companies. The leaders also discussed how the onset of the pandemic affected them personally.
There was a period of time for "much needed rebalancing," personally, Sealed Air CHRO Susan Edwards said. "Things slowed down a little bit [and] you got a chance to work from home," she said. "And I was surprised at how much I needed that." But very quickly, she learned that she values face-to-face interaction with others, Edwards said.
Professionally, the pandemic accelerated Sealed Air's flex work policies, she said. "We were already having a conversation about how we could create a global, flexible policy and practice. Half of the organization felt it would never work," Edwards said. "And the other half of the organization said, ‘you know, we ought to just shoot the moon and see what we can do with it.'" This "grand experiment" made the organization realize that it could be possible. "We know there are pitfalls to doing this long term," Edwards said. But there was a consensus to work through it, she said.
"I can't ever remember a time when having clarity around my own personal values and my company's values have been so centrally important to navigate in this environment that we've been in," Robyn Mingle, senior vice president of HR and CHRO at CommScope, said. "Organizations are looking to us to help guide decisions," Mingle continued. But the transparency of CommScope's values "really helped us to shape and make those decisions," she said; "values are the big hallmark of this year."
As news of the pandemic unfolded in Asia and Europe, Mingle said she realized that engaging with a network of global CHROs would be essential. She reached out to peers with an initial email and a group formed. "It was really important because our CEOs and leadership teams were looking to us for confidence in what we're recommending for decision making," she said.
Dow Jones is the home of Wall Street Journal, Barron's and other news publications. "We were at the epicenter of making sure that we were getting people information that they needed to respond to the COVID crisis, both individually and in the business context," Dow Jones Chief People Officer Kamilah Mitchell-Thomas said. It has also been a time to review processes and "declutter," Mitchell-Thomas said. A "surprise learning" for the company was that some pre-pandemic processes "were not necessarily moving the needle," she said. "We were allowed to quickly kind of clear the deck, so to speak, to focus in this really important time," Mitchell-Thomas said.
A greater focus on what really matters, like family life, self care and employee experience, took precedence, she said.
"The once seemingly impossible became quickly possible," Krispy Kreme Chief People Officer Terri Zandhuis said. For example, "testing some of the paradigms around the ability to be productive when you're working virtually" took place, Zandhuis said. In reviewing procedures, the company realized that some jobs that weren't considered for part time status could actually be part time, she said.
"I think we also really pivoted quickly on how we had to reinvent servicing our customers, while keeping our employees, who we call our Krispy Kremers, safe," Zandhuis said.
But, more than six months later, the pandemic is still affecting the workplace. "I don't think anyone anticipated this would be a long haul as it has turned out to be," she said. Processes that were initially helpful for employees may need some tweaking, Zandhuis said. "The flexibility the company offered at the beginning of the pandemic once provided employees energy, and "a chance to regroup and work differently," she said. The company is working to keep employees engaged, Zandhuis said — especially because Krisy Kreme continued with plans to open a flagship store in Times Square.
"When we thought about how we manage the performance of the business, and how to rally our Krispy Kremers," the company reflected upon "what do we do to uniquely respond to what's going on at this point in time," she said. "So, we threw out some of our traditional playbooks. And we did things like creating what we called 'active acts of joy.'" For example, on "healthcare Mondays," health care workers can show their ID and get free doughnuts to bring back to the hospital or to the clinic, Zandhuis said. "It gave us an opportunity to connect the brand with the people … very much on the front lines of what was going on."
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Update from 10/01/2020 (State of Georgia) \ Confirmed Cases 334,601
Deaths 7,470
Hospitalizations 29,918 ICU Admissions 5,546 Visit Georgia Department of Health website for more information:
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Georgia Employers' Association |
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