COVID-19: News and Updates |
| Special #39 - May 26, 2020 |
| Articles and Updates Today
COVID-19 HR News
- LEGAL BULLETIN: Form I-9 and E-Verify: What employers should know as businesses reopen May 26, 2020
- LEGAL BULLETIN: OSHA revises criteria for recording COVID-19 cases May 21, 2020
Other HR News
- ¶46,985 DOL announces final rule to expand access to bonuses for workers paid using fluctuating workweek method — AGENCY REGULATION,Written by Ronald Miller, J.D. May 22, 2020
- ¶46,998 IRS issues 2021 HSA inflation adjustments — AGENCY REGULATION, May 26, 2020 |
| | | LEGAL BULLETIN:Form I-9 and E-Verify: What employers should know as businesses reopen
May 26, 2020 Read Bulletin online>>
As a result of the COVID-19 pandemic, the U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, and U.S. Citizenship and Immigration Services implemented a number of temporary policy measures to minimize the burden on both employers and employees. As states lift their shelter-in-place orders, and as businesses prepare to resume operations, employers must ensure that they meet their compliance obligations with respect to their Form I-9 and E-Verify programs.
Temporary flexibility in completing Form I-9 has been extended
We previously reported that the DHS temporarily relaxed the requirement for in-person physical examination of I-9 documents and extended the deadlines. This “relaxation” was set to expire on May 19, but the DHS has extended it for an additional 30 days. It applies only to employees who are working remotely.
Within three business days of the reopening, all I-9 documentation that was inspected remotely must be inspected physically. Employers should enter “documents physically examined” in the “Additional Information” field of Section 2, or in Section 3 if appropriate, and then date and sign.
With employees who are on site at a work location, employers must follow the regular in-person physical inspection requirements for the Form I-9.
Temporary automatic extension of List B identity documents
Many states closed their Departments of Motor Vehicles due to the pandemic, which has impeded the ability of individuals to renew their expired state driver’s licenses, identification cards, and other List B identity documents. As a temporary measure, the DHS announced that beginning May 1, identity documents found in List B that were set to expire on or after March 1, 2020, and not otherwise extended by the issuing authority, may be treated as valid.
When an employee provides an acceptable expired List B document, the employer should record the document information in Section 2 under List B, as applicable, and enter “COVID-19” in the “Additional Information” field.
As an alternative, the employee may also choose to present a different List A or List B document, which should be accepted by the employer and recorded in the “Additional Information” field.
Within 90 days of the DHS’s termination of this temporary policy, employees who had presented acceptable expired List B documents are required to present valid unexpired documents to the employer. In Section 2 of the “Additional Information” field, the employer should record the number and other required document information from the document presented, and initial and date the change.
New Form I-9 is now mandatory
As we previously reported, use of the new Form I-9 became mandatory May 1.
Completing E-Verify cases
Employers operating remotely are still required to create cases for new hires in E-Verify within three business days from the date of hire. You must use the hire date from the employee’s form I-9 when creating the E-Verify case. Where E-Verify case creation is delayed due to COVID-19 precautions, or office closures due to COVID-19, the employer should select “Other” from the drop-down list in E-Verify and enter “COVID-19” as the specific reason for the delay. Employers should not take adverse action against an employee because the E-Verify case is in an “interim case status,” including extended interim case status.
Dealing with E-Verify tentative non-confirmations
The DHS may notify an employer that a case entered in E-Verify will require further information to be verified, which results in a Tentative Non-Confirmation case result. A TNC occurs when the information entered by the employer from the employee’s Form I-9 in E-Verify does not match the employee’s records with either the DHS or the Social Security Administration. Issuance of a TNC does not necessarily mean that the employee is not authorized to work in the United States but only that further information is required.
When an employer receives a TNC, it should first check the Form I-9 and verify that all of the employee’s information was entered correctly on the form. The employer must then notify the employee by providing the employee with a copy of the Further Action Notice, which lets the employee know whether the discrepancy is with the SSA, the DHS, or both, and what the employee must do to resolve the TNC. The employee may elect to contest the TNC, which means the employee must usually visit a Social Security field office in person or call the DHS within eight federal government working days.
Since SSA and DHS offices presently remain closed to the public, the USCIS issued guidance on March 21 that automatically extends the time for employees to take action to resolve TNCs. Employees can wait until SSA and DHS offices reopen. During the waiting period, the employer should not take any adverse action against an employee based on the employee’s interim case status.
ICE enforcement
On March 19, ICE temporarily halted enforcement actions due to COVID-19. Employers who were served a Notice of Inspection from the DHS during the month of March, and who had not already responded, were granted an automatic extension of 60 days. ICE has now granted an additional extension of 30 days to these employers. If you were served with a Notice of Inspection before March 1, you should conduct an internal audit of your I-9 documentation to identify and correct any issues to mitigate damages. You should also understand the penalties for violations, and evaluate and implement a training program to achieve “good faith substantial compliance.”
Now is the time for an internal audit
Although the DHS and ICE have provided some temporary flexibility with regard to the preparation of the Form I-9 and E-Verify, ICE enforcement actions remain ongoing, and an ICE audit could occur at any time. Employers can still face substantial civil penalties for maintaining improper or inaccurate I-9s. Ensuring the proper completion of the I-9 is the most important aspect of compliance, and can protect your business from hefty civil penalties and possible criminal charges.
Therefore, as business and government agencies begin to open, employers who took advantage of the government’s temporary flexibility will need to resume full compliance. Reopening is also a good time for employers to conduct internal audits to ensure that they have completed I-9s on file for all current employees, that any technical or substantive errors are corrected, and that they are compliant with E-Verify requirements and I-9 retention rules.
We are offering a number of programs to help employers of all sizes in a variety of industries to assess their compliance risks, and to create compliance programs designed to lessen the risk of enforcement actions.
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| | | LEGAL BULLETIN: OSHA revises criteria for recording COVID-19 casesConstangy, Brooks, Smith & Prophete,LLC
May 21, 2020 On April 10, the Occupational Safety and Health Administration attempted to simplify the decision making for most employers in determining whether employees diagnosed with COVID-19 contracted the disease at work. This earlier guidance seemed to be signaling that, unless an employer was in the health care industry or certain emergency response organizations, the Agency was not expecting many COVID-19 cases to be recordable. The Agency, in essence, said that in other workplaces, it was too difficult to determine whether the cases were actually work-related. Under the April 10 guidance, there had to be “objective evidence” that an employee contracted COVID-19 in the work environment, and the “objective evidence” had to be “reasonably available.” These terms did not exist in any of the 29 C.F.R. Part 1904 recordkeeping regulations, nor were there any Interpretation Letters explaining what those terms meant under any fact scenarios. As a consequence, many employers interpreted this guidance to mean that unless there could be no other logical explanation for an employee’s contracting COVID-19 than an exposure at work, the case was not work-related or recordable.
On May 19, OSHA issued a Revised Enforcement Guidance document, rescinding the April 10 guidance effective May 26. In its place is an attempt to fine-tune the April 10 guidance by explaining, in very broad terms, circumstances under which a case will be determined to be work-related.
- The new guidance first reiterates the OSHA recordkeeping criteria for recording a case of COVID-19:
- The case is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention;
- The case is work-related under § 1904.5, the recordkeeping regulation that deals with work-relatedness; and
One or more of the general recording criteria in § 1904.7 are met, such as medical treatment or days away from work.
The first step of the above three-step process is met only if the diagnosis of COVID-19 is established by a positive test result for SARS-CoV-2. Thus, it does not appear that symptoms alone, or even a diagnosis alone, would be enough.
The key to COVID-19 recordkeeping determinations is the second step: whether the case is work-related. OSHA acknowledges that because of the “ubiquity of community spread,” it is difficult to determine whether a COVID-19 illness is work-related. Employers are expected to make a “reasonable” investigation as to whether the case is work-related. This means that an employer should, among other things, do the following:
- Ask the employee how he believes the illness was contracted;
- Discuss with the employee the work and outside-of-work activities that may have led to the illness; and
- Review the employee’s work environment for potential SARS-CoV-2 exposures, including whether other employees who work near the employee also contracted COVID-19.
OSHA also notes in a different section of its Guidance document that “due weight” should be given to the opinion of a medical provider or public health authority as to whether the case is work-related.
Most importantly, OSHA provides a few examples of the evidence that it believes would be instructive in making the determination of work-relatedness:
- Likely to be work-related if “several cases” develop among workers who “work closely together and there is no alternative explanation.”
- Likely to be work-related if COVID-19 is “contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation.”
- Likely to be work-related if the employee’s job duties include having “frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.”
- Likely not to be work-related if the employee is “the only worker to contract COVID-19 in her vicinity and her job duties do not include having frequent contact with the general public, regardless of the rate of community spread.”
- Likely not to be work-related if, outside of work, the employee “closely and frequently associates with someone (e.g., a family member, significant other, or close friend) who (1) has COVID-19; (2) is not a coworker; and (3) exposes the employee during the period in which the individual is likely infectious.”
OSHA summarizes its examples by stating that if an employer cannot determine whether it is “more likely than not” that exposure in the work environment “played a causal role” with respect to the particular case of COVID-19, the employer does not need to record the case. The use of the “more likely than not” analysis is consistent with OSHA’s existing interpretation of § 1904.5(b)(3). Under this test if it is just as likely that an employee contracted the disease as a result of community spread, the case would not be work-related.
The reference to whether an exposure at work played a “causal role,” however, complicates the analysis. OSHA has consistently interpreted “work-related” in its Interpretation Letters to mean that the work environment need not be the sole cause or a predominant cause of a resulting injury or illness, but just a contributing factor. It is not yet clear whether this new guidance is intended to change that interpretation, temporarily, for COVID-19 cases.
Lessons learned
This new guidance is largely a return to the recordkeeping criteria that have been in place since 2002, which was relaxed by the April 10, 2020, guidance. Employers will again be expected to investigate COVID-19 cases just as they would any other illness case. The Agency recognizes that these determinations will be difficult because of the widespread existence of the coronavirus in communities. Each “work-related” example provided by OSHA includes the caveat, if “there is no alternative explanation” for the employee’s contracting COVID-19. In sum, the key in employers’ investigations will be to determine whether an employee had known exposures to COVID-19 away from work. This will not be an easy task.
The new guidance also appears to have complicated employers’ obligation to report admissions to a hospital or fatalities related to COVID-19. As noted, a COVID-19 case is not recordable according to the May 19 Enforcement Guidance document unless the employee tests positive for COVID-19. While an employer will obviously be aware of a hospital admission or a death, it is not clear that an employer would necessarily receive evidence of a positive test for COVID-19 near the time of an admission or even of an employee’s death. As of now, OSHA has not clarified whether an employer would have to know about the positive test result before its obligation to report was triggered.
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| | | ¶46,985 DOL announces final rule to expand access to bonuses for workers paid using fluctuating workweek method — AGENCY REGULATION, Written by Ronald Miller, J.D.
May 22, 2020
On May 20, 2020, the U.S. Department of Labor announced a final rule that allows employers to pay bonuses or other incentive-based pay to salaried, nonexempt employees whose hours vary from week to week. The rule clarifies that bonuses, premium payments, commissions and hazard pay on top of fixed salaries are compatible with the fluctuating workweek method of compensation. Such payments must be included in the calculation of the regular rate as appropriate under the Act. As compared to the proposed rule, the Department’s final rule adds examples and makes minor revisions designed to make the rule easier to understand.
Flexible work schedules. The Department believes that this rule will allow employers and employees to better utilize flexible work schedules. This is especially important as workers return to work following the COVID-19 pandemic. Some employers are likely to promote social distancing in the workplace by having their employees adopt variable work schedules, possibly staggering their start and end times for the day. This rule will make it easier for employers and employees to agree to unique scheduling arrangements while allowing employees to retain access to the bonuses and premiums they would otherwise earn.
In the final rule, the Department:
- Adds language to 29 CFR 778.114(a) to expressly state that employers can pay bonuses, premium payments, or other additional pay, such as commissions and hazard pay, to employees compensated using the fluctuating workweek method of compensation. (The rule also states that such supplemental payments must be included in the calculation of the regular rate unless they are excludable under FLSA sections 7(e)(1)–(8)). The rule grants employers greater flexibility to provide bonuses or other additional compensation to nonexempt employees whose hours vary from week to week, and it eliminates any disincentive for employers to pay additional bonus or premium payments to such employees.
- Addresses the divergent views expressed by the Department and courts―and even among courts―that have created legal uncertainty for employers regarding the compatibility of various types of supplemental pay with the fluctuating workweek method.
- Adds examples to 29 CFR 778.114(b) to illustrate these principles where an employer pays an employee, in addition to a fixed salary, (1) a nightshift differential, (2) a productivity bonus, and (3) premium pay for weekend work.
- Revises the rule in a non-substantive way to make it easier to read, so employers will be able to better understand the fluctuating workweek method. Revised 29 CFR 778.114(a) lists each of the requirements for using the fluctuating workweek method, and duplicative text is removed from revised 29 CFR 778.114(c).
- Changes the title of the regulation from "Fixed salary for fluctuating hours" to "Fluctuating Workweek Method of Computing Overtime."
Fluctuating workweek method. Under the current 29 CFR 778.114, an employer may use the fluctuating workweek method if the employee works fluctuating hours from week to week and receives, pursuant to a clear and mutual understanding with the employer, a fixed salary as straight time compensation for whatever hours the employee is called upon to work in a workweek, whether few or many.
In such cases, because the salary "compensate[s] the employee at straight time rates for whatever hours are worked in the workweek," the regular rate "is determined by dividing the number of hours worked in the workweek into the amount of the salary," and an employer satisfies the overtime pay requirement of section 7(a) of the FLSA if it compensates the employee, in addition to the salary amount, at a rate of at least one-half of the regular rate of pay for the hours worked each overtime hour. Because the employee’s hours of work fluctuate from week to week, the regular rate must be determined separately each week based on the number of hours actually worked each week.
The payment of additional bonus and premium payments on top of the fixed salary to employees compensated under the fluctuating workweek method has presented challenges to employers and the courts alike.
Fixed salary requirement. The Department is adopting its proposed regulatory language regarding the requirement that an employee must receive a fixed salary that does not vary with the number of hours worked in the workweek, whether few or many, for the fluctuating workweek method to be applicable. To prevent any further misunderstanding, however, the Department is also clarifying that the regulation does not require that an employee’s hours must sometimes fluctuate below 40 hours per week, so long as the employee’s hours worked do vary.
The regulation maintains the requirement for the use of the fluctuating workweek method that the fixed salary be sufficient to compensate the employee for all hours worked at a rate not less than the applicable minimum wage. The Department has determined that where an employer has reasonably calculated the fixed salary to cover at least the minimum wage for all hours worked, an occasional workweek where the fixed salary does not at least equal the applicable minimum wage, due to unusual and unforeseeable circumstances, does not invalidate the use of the fluctuating workweek method in other workweeks in which the salary equals or exceeds the applicable minimum wage as anticipated.
Clear and mutual understanding. The Department believes that the clear and mutual understanding requirement is an important condition placed upon the usage of the fluctuating workweek method. However, the Department has decided to add clarifying text in § 778.114(a) to emphasize that, although the parties must have a clear and mutual understanding that the fixed salary is compensation for all hours worked in the workweek, they need not possess such an understanding as to the specific method used to calculate overtime pay.
Bonus and premium payments. In the final regulation, the Department is adding language to § 778.114(a) clarifying that bonuses, premium payments, and other additional pay of any kind are compatible with the use of the fluctuating workweek method of compensation. The Department is also adding examples to § 778.114(b) to illustrate the fluctuating workweek method of calculating overtime where an employee is paid (1) a nightshift differential, (2) a productivity bonus in addition to a fixed salary, and (3) premium pay for weekend work.
Finally, the Department is changing the title of the regulation from "Fixed salary for fluctuating hours" to "Fluctuating Workweek Method of Computing Overtime."
Source: Written by Ronald Miller, J.D.
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| | ¶46,998 IRS issues 2021 HSA inflation adjustments — AGENCY REGULATION,
May 26, 2020
from GEA's HR answers now
The IRS has released the 2021 inflation-adjusted amounts for health savings accounts (HSAs) under Code Sec. 223.
For calendar year 2021, the annual limitation on deductions under Code Sec. 223(b)(2) for an individual with self-only coverage under a high-deductible plan is $3,600 ($7,200 for an individual with family coverage).
A “high-deductible health plan” is defined in Code Sec. 223(c)(2)(A) as a health plan with an annual deductible that is not less than $1,400 for self-only coverage or $2,800 for family coverage and annual out-of-pocket expense limits (deductibles, copayments and other amounts, but not premiums) that do not exceed $7,000 for self-only coverage or $14,000 for family coverage.
SOURCE: Rev. Proc. 2020-32, I.R.B. 2020-24, June 8, 2020.
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| | | GEA is excited to give you information from our friends at Constangy, Brooks, Smith & Prophete, LLP, for a four part series on "What Will Be After COVID-19?" Please let us know if you have any questions.
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Join Constangy for their last webinar
Cost: Complimentary Continuing Education: HRCI / SHRM
Register for as many webinars as you like.
Webinar Four: OSHA and Workers' Compensation
Wednesday, May 27 at 12:00 - 1:00 PM Eastern
* Tune in for insight from partners to prepare for OSHA and workers' compensation challenges as employers return to work.
If you would like copies of the slides of the presentation please email us at chris@georgiaemployers.org
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| | | Georgia Department of Public Health COVID-19 Daily Status Report For: 05/26/2020
These data represent confirmed cases of COVID-19 reported to the Georgia Department of Public Health as of 05/26/2020 12:22:57. A confirmed case is defined as a person who has tested positive for 2019 novel coronavirus. (Total tests 514,945)
COVID-19 Confirmed Cases: Total 43,730 Hospitalized 7,547 Deaths 1,871
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Georgia Employers' Association |
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