The American Rescue Plan Act

The American Rescue Plan Act (ARPA), which is the latest bill to address the ongoing economic impacts of COVID-19, has been signed into law. Most aspects of the law do not directly affect the HR function, but two of those that do—optional extension of sick and family leave and establishment of COBRA subsidies—are outlined below.

OPTIONAL EXTENSION OF SICK AND FAMILY LEAVES

Part of ARPA is an extension of the current tax credit scheme for Emergency Paid Sick Leave (EPSL) and Emergency Family and Medical Leave (EFMLA) under the Families First Coronavirus Response Act (FFCRA). The FFCRA required many employers to provide EPSL and EFMLA in 2020, but became optional when it was previously extended to cover January 1 through March 31, 2021.

The new extension under ARPA takes effect April 1, 2021, and lasts through September 30, 2021. Like the current version, it remains optional. In addition, tax credits are available but only to employers with fewer than 500 employees and up to certain caps. To receive the tax credit, employers are required to follow the original provisions of the FFCRA. For example, they can’t deny EPSL or EFMLA to an employee if they’re otherwise eligible, can’t terminate them for taking EPSL or EFMLA, and have to continue their health insurance during these leaves.

Emergency Paid Sick Leave (EPSL) Changes

Here are the key changes to EPSL, in effect from April 1 through September 30, 2021:

  • Employees can take EPSL to get the COVID vaccine and to recover from any related side effects.
  • Employees can take EPSL when seeking or waiting for a COVID-19 diagnosis or test result if they’ve been exposed to COVID-19 or if the employer has asked them to get a diagnosis or test. (Previously, time spent waiting on test results was not necessarily covered, which seemed like an oversight.)
  • Employees will be eligible for a new bank of leave on April 1. Full-time employees are entitled to 80 hours while part-time employees are entitled to a prorated amount. Unused hours from before April 1 will not carry over.
  • Employers can’t provide EPSL in a manner that favors highly compensated employees or full-time employees or that discriminates based on how long employees have worked for the employer. (Be aware that any inconsistencies in the granting of leave could potentially lead to a discrimination claim.)

Emergency Family and Medical Leave (EFMLA) Changes

Here are the key changes to EFMLA, in effect from April 1 through September 30, 2021:

  • EFMLA can now be used for any EPSL reason, in addition to the original childcare reasons. This includes the two new EPSL reasons noted above.
  • The 10-day unpaid waiting period has been eliminated.
  • The cap on the reimbursable tax credit for EFMLA has been increased to $12,000 (from $10,000). This applies to all EFMLA taken by an employee, beginning April 1, 2020. This change accounts for the additional 10 days of paid time off—the daily cap of $200 remains the same.
  • The law isn’t clear as to whether employees are entitled to a new 12-week bank of EFMLA. We anticipate that the IRS, DOL, or both will provide guidance on this question soon. It is possible that an employee will be entitled to additional unpaid protected time off, even if they already received the maximum reimbursable amount during previous EFMLA leave(s). We will update our materials if and when new information is available.
  • Employers can’t provide EFMLA in a manner that favors highly compensated employees or full-time employees or that is based on how long employees have worked for the employer. (Again, be aware that any inconsistencies in the granting of leave could potentially lead to a discrimination claim.)

Reasons for Using EPSL and EFMLA

Starting on April 1, employees can take EPSL or EFMLA for the same set of reasons, which is a useful simplification. The following are acceptable reasons for taking these leaves:

  1. When quarantined or isolated subject to federal, state, or local quarantine or isolation order
  2. When advised by a health care provider to self-quarantine because of COVID-19
  3. When the employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis; seeking or awaiting the results of a diagnostic test for, or a medical diagnosis of, COVID-19 because they have been exposed or because their employer has requested the test or diagnosis; or obtaining a COVID-19 vaccination or recovering from any injury, disability, illness, or condition related to the vaccination
  4. When caring for another person who is isolating or quarantining on government or doctor’s orders
  5. When caring for a child whose school or place of care is closed due to COVID-19

Employees and employers will—in most cases—want to exhaust EPSL first, since it has a higher tax credit, except when used to care for others.

Tax Credit Review

The tax credits available between April 1 and September 30 are the same as under the original FFCRA, except for the increased aggregate cap for EFMLA. Tax credits are available as described below, regardless of how much EPSL or EFMLA an employee used prior to April 1.

  • The credit available for EPSL when used for reasons 1, 2, or 3 (self-care) is up to 100% of an employee’s regular pay, with a limit of $511 per day.
  • The credit available for EPSL when used for reasons 4 or 5 (care for another) is up to 2/3 of an employee’s regular rate of pay, with a limit of $200 per day.
  • The credit available for EFMLA for any reason is up to 2/3 of an employee’s regular pay, with a limit of $200 per day and a cap of $12,000 per employee.

Employers can also claim a credit for their share of Medicare tax on the employee’s wages and the cost of maintaining the employee’s health insurance (qualified health plan expenses) during their absence.

COBRA SUBSIDIES

Another important aspect of the law employers should understand is the creation of COBRA subsidies.

Employees and families enrolled in the employer’s group health plans may lose coverage if the employee’s work hours are reduced or employment is terminated. They can elect to continue coverage under COBRA, but the high premium cost can make it difficult to afford this coverage.

ARPA provides a 100% COBRA subsidy if the employee’s work reduction or termination was involuntary. The subsidy applies for up to six months of coverage from April 2021 through September 2021 (unless the individual’s maximum COBRA period expires earlier).

For group plans subject to the federal COBRA rules, the employer will be required to pay the COBRA premium but then will be reimbursed through a refundable payroll tax credit.

Employers with fewer than 20 workers usually are exempt from the federal COBRA rules, but their group medical insurance plans may be subject to a state’s mini-COBRA law. In that case, it appears the subsidy will be administered by the carrier. The carrier will pay the premium and then be reimbursed by the government.

Employers will need to work with their group health plan carriers and vendors on how to administer the new subsidy provision. Although it takes effect April 1, 2021, employees who were terminated earlier but are still in their COBRA election window also are included. Federal guidance is expected to be released by April 10, including model notices that plans can tailor for their use.

Note that the COBRA subsidy doesn’t apply during FFCRA leaves because employees are entitled to maintain their health insurance during those leaves on the same terms as though they had continued to work.

11 Key Practices to Increase Workplace Safety

In 1970, when Richard Nixon signed the Occupational Safety and Health Act into law, an estimated 14,000 workers were killed on the job every year. Fifty years later, that number is down to 5,333, but workplace safety remains a paramount concern, and not only because we’re struggling through a pandemic.

We’ve broadened our knowledge of what dangers threaten the workplace and what strategies are best suited to promote organizational health. We better understand the psychological effects of stress, the damage caused by harassment, and harmful consequences of inequality. And we know how to mitigate these risks more effectively.

As you work to keep your workplace safe, consider implementing the following practices:

  1. Create and issue a written safety policy for employees to read and acknowledge. Employees should know that they will be held accountable to the policy and can be disciplined regardless of whether they sign it.
  2. Provide employees with a form (either paper or digital) so they can document and report their safety concerns. This promotes employee involvement in proactive safety assessments of the workplace. For this practice to work, employees need to feel comfortable raising concerns and confident those concerns will be addressed. You can make the submission process anonymous to increase the likelihood that it is used.
  3. Do not create safety incentive programs or reward employees when there are no reported incidents, as these rewards can encourage employees to keep safety violations hidden.
  4. Investigate all health and safety concerns, even if no one has made an official complaint.
  5. Provide paid sick leave and make requesting leave hassle-free. When sick employees are worried about a smaller paycheck or are required to find a substitute to cover their shift, they may feel pressured to come in to work while infectious, putting colleagues and customers at risk.
  6. Quickly and thoroughly address instances of sexism, racism, and other forms of inequality and discrimination.
  7. Promote psychological safety by taking steps to ensure people feel safe to speak up about their concerns.
  8. Give employees permission and time to rest and recharge. When a workplace situation causes someone to have a fight-or-flight response, it may be best for them to step away from the situation before they say or do something they may regret or that causes more harm. Make sure employees know that they can remove themselves from an overly stressful situation, without punishment or retaliation.
  9. Forward OSHA’s QuickTakes online newsletter to employees.
  10. Offer monthly 10-minute safety or wellness trainings. Trainings could be on anything from how to get a good night’s sleep to safe driving techniques. Promote employee involvement by asking various employees to facilitate them.
  11. Talk to your workers’ compensation carrier. You can get good safety tips, trainings, and ideas from them, and you may be able to get write-offs. Like you, they want to keep costs down, so they’ll likely appreciate your efforts to make safety a priority and do what they can to help. 

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How to Make Good Use of Your Employee Handbook

Employee handbooks are a nifty communication and reference tool for the workplace, but only if they’re used and not collecting dust on some physical (or digital) shelf. A handbook is only as good as what it does. At the minimum, it should do the following:

Introduce employees to the fundamentals of your organization’s culture—the beliefs and values that members of the organization are expected to share. This introduction explains what you do and why you do it. It may also give employees a look into the history of your organization, how you got to where you are, and where you intend to go. Last but not least, it gives employees an idea of how they can contribute to the culture.

Communicate to employees what general behaviors and procedures are expected of them. These include general safety responsibilities, confidentiality expectations, timekeeping processes, reporting procedures, dress codes, and any other ways of doing things at your organization.

Educate employees about what they can expect from the organization’s leadership. Executives, managers, and HR departments have obligations to their employees—both those they’ve established themselves and those required by law. A good handbook tells employees what those obligations are and how they will be met. If your employees are entitled to leaves or accommodations, for example, your handbook should explain these.

Support consistent enforcement of company policies. Employers expose themselves to risk when they interpret, apply, or enforce policies inconsistently. Transparency about policies and how they are enforced helps keep everyone accountable and the enforcement of rules consistent across the company.

Showcase the benefits the organization offers. Does your organization offer vacations, 401(k), health insurance, paid parental leave, or other employee benefits? If so, your handbook should outline these programs and their eligibility requirements.

Let employees know where to turn for help. Employees should feel safe turning to HR or a manager to report workplace violations, get workplace-related assistance, and get answers to any other questions they may have. The alternative is for them to turn to an outside third party, like the EEOC, the DOL, or an attorney, which could trigger a costly and time-consuming investigation. When a handbook provides multiple ways for an employee to lodge a complaint (ensuring they won’t have to report the problem to the person creating the problem), they are more likely to keep their complaints in-house.

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OSHA’s New COVID-19 Guidance

OSHA’s new guidance is advisory in nature and creates no new legal obligations. However, one of President Biden’s first acts after being sworn in was to sign an Executive Order on Protecting Worker Health and Safety that directs OSHA to increase enforcement of existing agency standards and investigate whether a new standard for COVID-19 mitigation is needed. Given that, employers may want to consider the new guidelines a strong recommendation. 

In a nutshell, OSHA recommends that employers and employees implement a COVID-19 prevention program that includes the following elements:

  1. Masks and social distancing
  2. A hazard assessment
  3. Measures to limit the spread of the virus
  4. Ways to identify (and send home) sick employees and policies for employee absences that don’t punish workers for staying home when sick
  5. Communication of coronavirus policies and procedures in both English and the primary language of non-English speaking workers
  6. Protections from retaliation for workers who raise coronavirus-related concerns

If you’re interested, you can learn more about the program here

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Upcoming Deadlines Reminder for March 2021

March 1:

  1. File Forms 1094-B, 1095-B, 1094-C, and/or 1095-C with the IRS (paper filers).
  2. Submit Medicare Part D Creditable (or Noncreditable) Disclosure to CMS (for calendar-year health plans).

March 2:

  1. Furnish Forms 1095-B or 1095-C to individuals. 
  2. OSHA Form 300A electronic submission due for applicable employers.

March 5:

  1. National Employee Appreciation Day! Consider customizing a recognition plan for your organization.

March 31:

  1. File Forms 1094-B, 1095-B, 1094-C, and/or 1095-C with the IRS (electronic filers).

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How to Help Employees Communicate More Effectively

In an ideal world, communication would be easy. We’d immediately know exactly what to say or write. Emails, Slack messages, and reply threads would practically write themselves. And there’d be no confusion about what anyone meant, ever.

Of course, communication never works that way. We stare at the computer screen trying to decide how to begin an email. We misspeak or garble our words. We don’t always convey exactly what we intend. We misunderstand, overlook, or forget information we’ve been given. We also sometimes read emotions into words that weren’t what the writer was feeling. Or we pack our speech with such an emotional punch that it distracts from the point we’re trying to make.

Written communication often exacerbates these issues, a fact that has many leaders worried since more people are working remotely and relying on the written word to do their jobs. It’s no secret that we spend far too much time on email and other communication tools.  

Fortunately, you don’t necessarily need to hire a writing coach to teach your employees better writing skills—although this can in some cases be a good idea. You can significantly improve communication in your organization by asking your employees to consider the following practices in their written communications:

Break up long sentences and paragraphs.

A big unbroken block of text is likely to befuddle your reader before they even get to the first word. Long sentences and paragraphs also make comprehension and retention of information much more difficult. Note the differences in these two communications:

Sample 1: I support the goals outlined in the proposal you sent to me yesterday, especially the need to better define appropriate metrics around the solicitation of customer satisfaction scores, and I want to thank you for the thought you gave to proposing workable solutions, but I’m not sure if all of the proposed solutions will work at this time. Let’s discuss it all at our next check-in.

Sample 2: Thank you for sending the proposal yesterday. I appreciate the thought you put into it. I agree with you about the goals, especially what you wrote about customer satisfaction scores. The solutions you proposed, however, may be a challenge to implement right away. Let’s discuss the proposal at our next check-in.

These samples provide the same information, but the second is easier to follow and digest.

Use clear, concrete terms.

Vague words, convoluted ideas, and broad generalizations make for easy miscommunication. Your reader will be more likely to understand your meaning if your language is specific. Remember too that just because something is clear to you doesn’t necessarily mean it will be clear to your reader. Compare these two statements:

Sample 1: Would you be able to review the thing I sent you earlier?

Sample 2: Here’s the letter for Anil I told you about this morning. Would you be able to proofread it for typos by the end of the day?

The first sample is likely to cause confusion and frustration if the recipient has recently received a lot of “things” from the writer or other people. In contrast, the second sample makes the context and the requested task clear to the reader.

Provide context and direction when adding someone to a conversation.

Most of us have had the experience of receiving a forwarded email that we’re not immediately sure what to do with. Should we keep it as a reference? Read through the thread? Respond in some way? We haven’t been told. Don’t do this. You should clue the reader in to what the conversation entails and what they need to know and do in response. Compare:

Sample 1: Please see below. What do you think?

Sample 2: Please read through the conversation below and note the product request from Oliver. Is that something you can add to your work this week?

The first sample is likely to prompt the recipient to weigh in on the wrong subject or ask the writer for clarification before responding, wasting valuable time either way. The second sample gives clear instruction, saving time.

Avoid unnecessary details.

While some context is useful, too much can overwhelm the reader and add to the time it takes for the communication to be written, read, and acted on.

Sample 1: I ran into Lindsay in the lunchroom and asked her about the Paterson deal. She asked me to follow up with her after her lunch break, which I did, and she gave me permission to start on the outline. She seemed a little aggravated that I interrupted her lunch. Anyway, I need to respond to a few emails before I get started on it, but I will get to it after and have it to you and her by close of business today.

Sample 2: I got the go ahead from Lindsay on the Paterson deal. I’m working on the outline and will email it to you and her by close of business today.

The first sample likely has too much information. The writer may have felt like including the extra details because they felt bad about asking Lindsay to work on her lunch break, but unless there’s a good reason for the recipient to know those details, they’re best left out.

Save difficult or emotionally intense conversations for calls, video conferences, or in-person meetings.

These conversations usually require more finesse than written text can provide. If you anticipate a strong emotional response to what you have to say, or if you believe the person with whom you’ll be communicating may read strong emotions into what you have to say, don’t write to them. Talk it through instead. Let them hear your voice and listen carefully to theirs.

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HR Tip of the Month – January 2021

In the past year, many employers who would never have considered a remote work arrangement discovered that it was not only possible, but in some (or many) ways preferable to how they worked before. As a result, many employers plan on maintaining a remote workforce in some form once the pandemic is over. There’s a lesson here for all employers: the standard way of doing things is not necessarily the only or best way to do things.

As you begin the new year, it might be worth examining your HR practices and asking yourself whether the way you do things is really the best way, or just the comfortable, easy way. Look especially for areas where you’re setting unnecessary restrictions on yourself or your employees.

Job postings, for example, often have requirements that could be tossed with no loss, but a lot of gain. Does someone really need a four-year degree to do an entry level admin job? Or knowledge of how to use certain productivity tools, which can realistically be learned in a matter of hours? Restrictions such as these may be limiting your applicant pool. Other old habits may be losing you productivity and profit.

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A Note on Requiring COVID-19 Vaccines

With COVID-19 vaccinations underway and widespread availability in sight, many employers want to know whether they can require their employees to get the vaccine.

While recent EEOC guidance implies that they expect many employers to require a vaccine, there are already several states where bills are being introduced to prevent employment discrimination against those who refuse a vaccine (MN, NJ, SC), and it’s likely bills like this will be introduced in more states soon. Additionally, we anticipate that there will be state and federal lawsuits from individuals, which may result in rulings that impact the law in individual states or entire circuits (for instance, the Ninth Circuit, which covers AL, AR, CA, HI, ID, MT, NV, OR, WA, or the Eleventh Circuit, which covers AL, FL, GA).

Given the legal risks here, and since many Americans will not have access to a vaccine until Spring or even Summer, we believe it would be prudent for most employers to wait to see how things play out in courts and legislatures across the country before deciding to require vaccinations.

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Compliance Requirements for a Remote Workforce

According to Gallup, the number of days employees are working remotely has doubled during the pandemic. Some companies are even considering making a remote work arrangement permanent. While there are no laws that exclusively apply to remote workplaces, remote work does come with additional compliance risks. Below is our general guidance for employers.  

Logging Hours and Preparing Paychecks

Make sure that employees are logging all of their time. Keep in mind that when working from home, the boundaries between work and home life are easy to blur. Employees may be racking up “off the clock” work, and even overtime, that they aren’t being paid for. While this may seem harmless enough in the moment, particularly if the employee isn’t complaining, unpaid wages can come back to bite you once the employee is on their way out the door.

Minimum Wage

Employees should be paid at least the minimum wage of the state where they physically work, whether this is a satellite office or their own home. Beyond that, it’s important to be aware that some cities and counties have even higher minimum wages than the state they are located in. In general, with most employment laws, you should follow the law that is most beneficial to the employee.

Breaks

Remote employees must take all required break and rest periods required by law, as if they were in the workplace.

Harassment Prevention Considerations

You may have employees working in a state that has a lower bar for what’s considered harassment or that requires harassment prevention training. You can find this information on the State Law pages on the HR Support Center.

Remote work also comes with additional opportunities for harassment (even if it doesn’t rise to the level of illegal harassment) such as employees wearing clothing that crosses the line into inappropriate, roommates in the background unaware that they are on camera, or visible objects that other employees may consider offensive. You can prevent these sorts of incidents by having clear, documented expectations about remote meetings, communicating those expectations to your employees, and holding everyone accountable to them. It also wouldn’t hurt to occasionally remind everyone to be mindful that they and what’s behind them are visible to coworkers when they’re on video. That said, going overboard with standards that you’re applying to employees’ private homes can cause anxiety and morale issues, so make sure your restrictions have some logical business-related explanation.

Workplace Posters

Many of the laws related to workplace posters were written decades before the internet, and so their requirements don’t always make sense given today’s technology.

The safest option to ensure you’re complying will all posting requirements in one fell swoop is to mail hard copies of any applicable workplace posters to remote employees and let them do what they like with the posters at their home office. If you have employees in multiple states, you should send each employee the required federal posters, plus any applicable to the state in which they work.

Alternatively, more risk-tolerant employers often provide these required notices and posters on a company website or intranet that employees can access. A number of newer posting laws expressly allow for electronic posting, but this option is not necessarily compliant with every posting law out there.

FMLA Eligibility

Remote employees who otherwise qualify will be eligible for leave under the federal Family and Medical Leave Act (FMLA) if they report to or receive work assignments from a location that has 50 or more employees within a 75-mile radius.

According to the FMLA regulations, the worksite for remote employees is “the site to which they are assigned as their home base, from which their work is assigned, or to which they report.” So, for example, if a remote employee working in Frisco, TX, reports to their company’s headquarters in Portland, OR, and that site in Portland has 65 employees working within a 75-mile radius, then the employee in Frisco may be eligible for FMLA. However, if the site in Portland has only 42 employees, then the remote employee would not be eligible for FMLA. The distance of the remote employee from the company’s headquarters is immaterial.

Verifying I-9s

In normal circumstances, the physical presence requirement of the Employment Eligibility Verification, Form I-9, requires that employers, or an authorized representative, physically examine, in the employee’s physical presence, the unexpired document(s) the employee presents from the Lists of Acceptable Documents to complete the Documents fields in Form I-9’s Section 2.

However, in March, the Department of Homeland Security (DHS) temporarily suspended the physical presence requirement for employers and workplaces that are operating remotely due to COVID-19 related precautions. In other words, employers with employees taking physical proximity precautions due to COVID-19 (and operating remotely) are not required to review the employee’s identity and employment authorization documents in the employee’s physical presence. Inspection should instead be done remotely. As of the date of this newsletter, this temporary rule is still in effect.

Equipment

In some states, an employer is required either to provide employees with the tools and items necessary to complete the job or to reimburse employees for these expenses. However, workstation equipment like desks and chairs is usually not included in this category of necessary items.

That said, an employee might request a device or some form of furniture as a reasonable accommodation under the Americans with Disabilities Act (ADA) so they can perform the essential functions of their job. In such cases, you would consider it like any other ADA request. Allowing them to take home their ergonomic office chair, for example, would probably not be an undue hardship and therefore something you should do.

Deciding Who Can Work from Home

You may offer different benefits or terms of employment to different groups of employees as long as the distinction is based on non-discriminatory criteria. For instance, a telecommuting option or requirement can be based on the type of work performed, employee classification (exempt v. non-exempt), or location of the office or the employee. You should be able to support the business justification for allowing or requiring certain groups to telecommute.

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Four Steps to Take When an Employee Is Diagnosed with COVID-19

As COVID-19 infection rates continue to climb, it’s imperative that organizations respond quickly when an employee is diagnosed. Here are the steps employers should take:

Notify Employees

Employees should be notified of potential exposure in the workplace, but they should not be told who is sick. Employees won’t like that they can’t gauge their own risk, but the Americans with Disabilities Act (ADA) requires this type of information remain confidential. Don’t worry if employees figure it out on their own, but make sure you’re not the one to reveal the information (and don’t drop sneaky hints to help them along).

Assess the Risk of Exposure and Quarantine If Advisable

If there was close contact for a prolonged period (about six feet or less for 15 minutes or more over the course of 24 hours), exposed employees should quarantine. If you aren’t confident in your risk assessment, call your local or state health authority to help you determine which employees should quarantine.

Disinfect Areas Used by the Sick Employee

The CDC recommends the following practices (among others):

  1. Close off areas used by the person who is sick for 24 hours, if possible.
  2. Open outside doors and windows to increase air circulation in the area.
  3. Clean and disinfect areas and items used by the person who is sick (their workstation, bathrooms, common areas, tablets, touch screens, keyboard, registers). Wait as long as possible before cleaning and disinfecting.

If it has been seven days or more since the person who is sick was in the workplace, additional cleaning and disinfection is not necessary.

For more detailed instructions on cleaning and disinfecting the workplace after someone is diagnosed, and lots of great general guidance, see the CDC’s Guidance for Business and Employers. Calling your local or state health authority is recommended as well. 

Determine When an Employee Can Return to Work

Sick employees should work with their healthcare provider to determine when to return to the workplace. Generally, an employee will be okay to return when at least 24 hours have passed since resolution of fever without the use of medication, and other symptoms have improved, and at least 10 days have passed since symptoms first appeared or since the positive test result, if the employee is asymptomatic.

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