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COVID-19: News and Updates |
| Special #13 - April 7, 2020 |
| Articles Today
- LEGAL BULLETIN - Risky business: Furloughs, layoffs, and reductions in pay for H-1B workers
Constangy, Smith, Brooks & Prophete, LLP
By Punam Rogers / Boston Office April 6, 2020
- ¶46,842 Updated Q&As address more nuances of FFCRA emergency FMLA leave and paid sick time requirements — AGENCY REGULATION, By Pamela Wolf, J.D.
(Apr. 7, 2020)
- HRDIVE Article: It's not too late: How to prioritize worker mental health during a pandemic April 7, 2020
- Georgia Department of Public Health COVID-19 Daily Status Report
- Live Webinar > Leadership During This Crisis: Proactive Leadership for Employees in a Reactive Mindset Register>> April 15, 2020 - 1pm - 2pm EDT
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LEGAL BULLETIN
Constangy, Smith, Brooks & Prophete, LLP By Punam Rogers / Boston Office
April 6, 2020
Risky business: Furloughs, layoffs, and reductions in pay for H-1B workers
As the COVID-19 pandemic persists, U.S. employers are feeling the economic impact and the unintended consequences to their workforce. Many employers who supplement their workforce with foreign professional workers in H-1B status are attempting to navigate vague and antiquated regulations with no federal guidance from the U.S. Department of Labor or the U.S. Citizenship and Immigration Services. Absent a clear legal solution, U.S. employers of H-1B workers will need to conduct a risk analysis as they weigh difficult options including furloughs, layoffs, wage reductions, and possible office closures in order to save their businesses.
Does the law provide a path to unpaid furlough or temporary leave of H-1B workers?
No. Employers who place H-1B workers in unpaid furlough or involuntary unpaid leave status could be exposed to liability such as fines, back wages and other penalties. This is irrespective of the fact that the employer may not be paying similarly situated U.S. workers.
Under current law and in the absence of agency guidance, employers who furlough H-1B workers should continue paying at least the prevailing wage rate as set forth on the underlying H-1B documentation. Of course, your U.S. workers may file discrimination claims with the U.S. Department of Justice, Immigrant and Employee Rights Division. These claims have become more common in the last few years. Although the law may be on the side of the H-1B employer, disparate treatment of H-1B and U.S. workers can create serious morale issues in your workforce, and the complaint itself can expose your business to other legal scrutiny by the DOJ.
What is the best way to minimize risk if an H-1B employer elects the furlough option?
The only way an employer may end its obligation to pay the required wage to an H-1B worker in non-productive status is by effectuating a bona fide termination of the employment relationship. This includes a requirement to notify the USCIS and an offer to pay return transportation costs for the worker. The benefits of termination are that you eliminate the risk of future wage payment liability for the affected worker, and lessen the risk that you will get a discrimination claim from a U.S. worker.
The negative side to this approach is that when business picks up, and you would like to rehire the H-1B worker, there will be an economic cost for re-filing the petition. Moreover, depending on the timing, you may or may not be able to rehire the H-1B worker immediately. For instance, if you file a new H-1B petition to reinstate the worker within the 60-day grace period after the termination date, then the worker may begin work under the H-1B portability rules. On the other hand, if you wait more than 60 days, the H-1B petition will have to be adjudicated before you can reinstate the worker. Complicating the timing issues further is that the USCIS has suspended premium processing until further notice, so it is hard to predict how long the waiting period will be. In addition, the USCIS now applies a de novo review of new H-1B petitions (in other words, the agency reviews the new H-1B petition “from scratch,” as if an earlier petition had never been approved). This means there may be additional costs related to a Request for Evidence and the possibility that the petition is ultimately denied.
Given the unsettled state of the law, and the risks on both sides, what should an employer do?
Absent guidance from the DOL and the USCIS to address the issue of furloughs and H-1B workers, U.S. employers can only do their best with respect to substantial good faith compliance with immigrations laws versus business survival planning.
The safest approach is to either keep the H-1B employee at full pay or effect a bona fide termination of employment.
However, for employers willing to undergo some risk, the following is the closest regulatory justification to help legally manage the risk of furloughing an H-1B employee:
- 20 CFR 655.731(c)(7)(ii) Circumstances where wages need not be paid:
If an H-1B nonimmigrant experiences a period of nonproductive status due to conditions unrelated to employment which take the nonimmigrant away from his/her duties at his/her voluntary request and convenience (e.g., touring the U.S., caring for ill relative) or render the nonimmigrant unable to work (e.g., maternity leave, automobile accident which temporarily incapacitates the nonimmigrant), then the employer shall not be obligated to pay the required wage rate during that period . . .
(Emphasis added.) One could argue that stay-at-home orders, as well as the economic impact of the pandemic, is causing the “period of nonproductive status due to conditions unrelated to employment” rather than the employer’s decision. However, the DOL may not agree with this interpretation. If not, the agency could order back wages for all H-1B workers for the period of time during which they were furloughed. The affected H-1B workers themselves could also sue the employer to collect back wages.
The employer’s assessment should be based on all of the relevant circumstances, and a balancing of “good faith substantial compliance” against business needs. The principal goal for the DOL is to protect U.S. workers. If you roll out a plan that treats all workers equally, minimizes the impact of the furlough on the H-1B workers as much as possible, provides health and other benefits, and clearly documents the business case for company survivability, this can minimize your risk.
Another way to minimize risk is to give all affected employees (U.S. and H-1B) the option of choosing whether they prefer termination, layoff, or furlough. If you choose this approach, be sure to get the elections in writing. If an H-1B worker elects in writing to take an unpaid furlough to stay “employed,” this would appear to comply with the DOL regulations.
Can we reduce the wage rate of H-1B workers if we reduce wage rates of all employees?
If you choose to reduce pay or hours, or some combination, you will need to make sure that the wage rate for the H-1B workers does not fall below the prevailing wage rate on the Labor Condition Agreement that governs the underlying H-1B status. If the reduced wage is equal to or greater than the prevailing wage listed on the H-1B worker’s corresponding LCA (even if it is below the offered wage), you are not likely to need to file a new LCA or an amended petition, provided that no other material changes to the employment relationship have occurred.
If a reduction in pay or hours of work results in the loss of the H-1B worker's "exempt" status under the Fair Labor Standards Act, then the employer would be required to obtain a new LCA. A failure to obtain a new LCA and file an amended H-1B petition with USCIS would put the employer at risk of fines, back wages and possibly other penalties.
Are there any other general principles that H-1B employers should follow?
Whatever option you choose, you ought to consider these two basic principles of good faith compliance:
- Treat all employees or classes of similarly situated employees consistently, to the extent that the DOL allows it, regardless of visa status, country of origin, or nationality.
- Keep good documentation of the terms of the furlough. If the furlough is related to a government stay-at-home order, include copies of the order. Even if you do not know the duration of the furlough, your documentation should include an anticipated date on which you will re-assess the need for the furlough. Keep good records of any wages and benefits that will continue during the furlough, and any other details that may help mitigate your legal risk.
Again the safest approach is to either keep H-1B employees at full pay, or effectuate a legal termination.
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| | | ¶46,842 Updated Q&As address more nuances of FFCRA emergency FMLA leave and paid sick time requirements — AGENCY REGULATION, (Apr. 7, 2020)
Temporary rule. The temporary rule implements the newly available public health emergency leave under Title I of the Family and Medical Leave Act (FMLA), and the similarly new emergency paid sick leave available to assist working families facing public health emergencies arising out of the COVID-19 crisis. These new leave protections are established by a time-limited statutory authority set to expire on December 31, 2020. The temporary rule was effective April 2, although it became operational on April 1.
- Online school instruction. When the school or place of care of an employee’s child has moved to online instruction or to another model in which children are expected or required to complete assignments at home, the school is still considered "closed" if the physical location where the child received instruction is closed.
- Staffing companies. Staffing companies, regardless of how they classify or count internal or staffed workers, must provide paid sick leave and expanded family and medical leave to workers who are their "employees" for purposes of the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act. Note that a joint employer must include in its count all employees on its payroll, even if the joint employer provides or refers such employees to other employers.
- On workers’ comp or disability. A person who is receiving workers’ compensation or temporary disability benefits through an employer or state-provided plan is not entitled to paid sick leave or expanded family and medical leave unless the individual was able to return to light duty before taking leave and a qualifying reason prevented them from working.
- Employer-approved leave. Employees who are on a mandatory, employer-approved leave of absence may not take paid sick leave or expanded family and medical leave under the FFCRA because it is not a qualifying reason for leave that prevents the employee from working (or teleworking). If the leave of absence is voluntary, however, the employee may end the leave of absence and begin taking paid sick leave or expanded family and medical leave under the FFCRA if a qualifying reason prevents the employee from being able to work (or telework).
- Delayed enforcement, immediate compliance. The DOL will not bring enforcement actions against employers for violations of the FFCRA occurring within 30 days of the enactment (March 18 through April 17, 2020), provided the employer has made reasonable, good faith efforts to comply with the Act. If the employer violates the Act willfully, fails to provide a written commitment to future compliance, or fails to remedy a violation upon notification, the DOL reserves its right to exercise enforcement authority during this period. However, note that the leave provisions are effective April 1; employers must comply with these provisions on the effective date despite the limited stay of enforcement until April 17. Once the DOL fully enforces the FFCRA, it will retroactively enforce violations to April 1, if employers have not remedied the violations.
Seasonal employees. The Q&A also lays out the steps that an employer with a seasonal employee who has an irregular schedule must take in order to calculate the amount of pay for each day of paid sick leave or expanded family and medical leave that the employee takes:
1. Calculate how many hours of leave the seasonal employee is entitled to take each day. Because the employee works an irregular schedule, this is equal to the average number of hours each day that he or she was scheduled to work over the period of employment, up to the last six months.
2. Calculate the seasonal employee’s regular hourly rate of pay. This is calculated by adding up all wages paid over the period of employment, up to the last six months, and then dividing that sum by the number of hours actually worked over the same period.
3. Multiply the daily hours of leave (first calculation) by the employee’s regular hourly rate of pay (second calculation) to compute the base daily paid leave amount.
4. Determine the actual daily paid leave amount, which depends on the type of paid leave taken and the reason for such paid leave.
Pay per type of leave. A seasonal employee must be paid the full base daily paid leave amount, up to $511 per day and $5,110 in total, if the employee is taking paid sick leave because the employee: - Is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
- Has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or
- Is experiencing symptoms of COVID-19 and is seeking a medical diagnosis.
The seasonal employee must be paid two-thirds of the base daily paid leave amount, up to $200 per day and $2,000 in total, if the employee is taking paid sick leave because the employee is: - Caring for an individual who either is subject to a quarantine or isolation order related to COVID-19 or who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- Caring for his or her child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; or
- Is experiencing any other substantially similar condition, as determined by the Secretary of Health and Human Services.
Note that where seasonal employees are not scheduled to work, for example, because it is the off-season, the employer does not have to provide paid sick leave or expanded family and medical leave.
By Pamela Wolf, J.D.
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| | HRDIVE Article It's not too late: How to prioritize worker mental health during a pandemic
AUTHOR Sheryl Estrada
April 7, 2020
Go to Article online>>
As the COVID-19 pandemic continues, the Centers for Disease Control and Prevention (CDC) has cautioned that fear and anxiety about the virus can be overwhelming.
In fact, more than 4 in 10 adults (45%) responding to a recent Kaiser Family Foundation Health poll said worry and stress related to COVID-19 has had a negative impact on their mental health, up from 32% in early March. Mental health wellness must be a priority in the workplace during these challenging times, according to experts, and technology can play a role in increasing employee access to care.
"One in every 5 American adults experience some form of mental illness — over 43 million Americans," William Kassler, chief medical officer of government health and human services at IBM Watson Health, told HR Dive in a phone interview. A work environment can have both positive and negative effects on an employees' mental health, Kassler added.
The traditional workplace has changed for many since late February when the CDC advised businesses to start preparing for the spread of COVID-19, specifically focusing on transitioning to telework. Working at home and the disruption of one's usual routine can be very stressful, said Kassler, a health policy expert and practicing primary care internist and epidemiologist. But research has shown that most employer-sponsored health plans do not offer coverage for mental health that's comparable to their physical health offerings.
It's not too late for companies in a time of crisis to implement mental health strategies, Kassler said. However, they will be in response mode. "In a pandemic response, there are three phases: preparedness, response and recovery," Kassler explained. "Right now if you're asking, what can employers do, well, the time for preparedness is gone. They can only respond."
During this time, following the recommendations of local and national public health authorities regarding mental health is essential, he said. It's also important to look at the specific recommendations that are coming to businesses from the CDC, Kassler said. Companies can point to places where employees can get help and administer policies that don't put pressure on people who are protecting themselves and their families, he added.
HR professionals shouldn't be required to provide therapy to employees, Kassler added. "HR is good at what HR does, but most HR folks don't have a therapeutic background; they're not counselors," he said. "But what HR can do is help companies develop the policies and practices in place, get the resources and broker the interaction between people who deliver therapy."
Social distancing while showing care
At the instruction of the CDC, those in the U.S. are to practice social distancing and maintain physical distance from others. Although social distancing is necessary, it can magnify challenges that already exist in society, Limeade CEO Henry Albrecht told HR Dive in an interview. "A lot of people don't realize that even before this COVID-19 pandemic, there's also been this quiet epidemic of isolation and loneliness in this country," he said.
Limeade, which brands itself as an employee well-being platform, seeks to increase physical distancing between employees but reduce social isolation, Albretcht said. The company provides tools for managers to check in on their teams and has social events like a virtual happy hour. "What we found is that it's been a really positive experience for a lot of people," Albrecht said. "I get to learn things about colleagues that I didn't know."
Prior to the COVID-19 pandemic, mental well-being was a challenge for employers, according to research. Limeade's 2020 Employee Care Report, which surveyed 1,000 full-time U.S. workers and was released March 6, found that 47% of employees who have disclosed a mental health issue in the workplace have experienced a negative consequence by doing so. And 1 in 3 employees have left a job because they didn't feel their employer cared about them as a person. The company has made available, at no charge, a version of the Limeade Care in Crisis edition software with a "laser focus" on COVID-19, Albrecht said. "Care doesn't just feel good for the employees, it's essential for the business," he said. "If you want to attract and retain a workforce, right now you're sending a message to your employees what your true colors are."
Innovative ways to seek professional help
"So it's important for HR to curate and go to a source of good apps that assure privacy of content that is vetted by mental health professionals that have user interfaces that are appropriate and secure," he said. Two apps Kasser discussed were Tiatros and Get Results in Transition, or GRIT.
Tiatros, for example, is an online anonymous group session app developed by trained psychiatrists and psychologists that goes through standard behavior cognitive techniques, Kasser said. The app uses artificial intelligence (AI) tools such as natural language analytics to "[provide] to the counselors to the counselors feedback on personality, on stress, on sentiment," he said. Since it's anonymous, HR professionals should also be inclined to participate, Kassler said. "HR folks are employees and bring the same issues to work as all the rest of us do," he said.
As companies navigate the COVID-19 pandemic, they should process the lessons learned in regard to mental health and put "policies and practices in place in advance to prepare for this, like they would a business continuity operation plan to address employee needs," Kassler said.
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| | Georgia Department of Public Health COVID-19 Daily Status Report
Today’s significant increase in cases is in part due to additional laboratories reporting to DPH, and also improvements in electronic reporting from other laboratories. Patient information is often incomplete and DPH works to complete the records, so data will change over time.
Georgia Department of Public Health COVID-19 Daily Status Report For: 04/02/2020
These data represent confirmed cases of COVID-19 reported to the Georgia Department of Public Health as of 04/02/2020 11:28:33.
A confirmed case is defined as a person who has tested positive for 2019 novel coronavirus.
COVID-19 Confirmed Cases: No. Cases (%)
Total 8818 (100%)
Hospitalized 1774(20.12%)
Deaths 329 (3.73%)
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| | | Live Webinar Leadership During This Crisis:
Proactive Leadership for Employees in a Reactive Mindset |
| Please register for presented by Pete Tosh
Apr 15, 2020 1:00 PM - 2:00 PM EDT
You will have access to hand-outs to download during the Webinar Overview
Today there is a need for a different approach to Leadership. The outbreak & rapid spread of the coronavirus has created havoc not only to our health systems but to the way we work. Overnight many businesses have transitioned millions of employees to work from home. For a great many of those employees, working virtually is a new reality. Additionally, employees are seeing 24/7 pandemic news & their savings being shredded. As leaders & their teams make this sudden shift, it will be a challenge to ease employees’ anxiety, collaborate effectively & function productively
Because of the disruptions caused by the COVID-19 pandemic leaders are being forced to think, behave & lead in ways that are unfamiliar & uncomfortable. With employees unmoored & a work-life experience that’s ever-shifting, leaders need to exhibit a leadership style that is situationally appropriate. Employees & organizations have different requirements & expectations of their leaders – than they did 30 days ago. And organizations & employees – more than ever - need their leaders to ‘step up.’
Join Georgia Employers’ Association and Pete Tosh as he gives you ten proven crisis leadership approaches
Who Should Attend the Webinar? Any leader, manager, or supervisor who wants to improve his/her crisis leadership skills
Topics Covered: This webinar we will discuss the following ten, proven crisis leadership approaches: Developing & Communicating Your Business Preparedness & Response Plan - to Employees & Customers Recognizing the Increased Importance of ‘The Employee Experience’ Flattening the Employee Anxiety Curve Remaining Calm & Avoiding Knee-Jerk Reactions Establishing Clear Goals & Expectations for a Remote Workforce Leading from Home - by Not Acting Like You are Remote Preventing Employees from Feeling Detached Understanding Your Employees’ Unique, Remote Work Environments Taking Advantage of Virtual Meeting Options Rewarding the Employee Behavior You Want Repeated
Webinar Cost $60.00
After registering, you will receive a confirmation email containing information about joining the webinar. Brought to you by GoToWebinar® Webinars Made Easy® To learn more about Georgia Employers' Association Leadership and Management Training please visit our website. Go to training>>
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