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.

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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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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Key Definitions to Help You Understand the ADA

If you hadn’t engaged with the Americans with Disabilities Act (ADA) before the pandemic, you probably have by now. The ADA comes up a lot these days, both with respect to confidentiality of medical information (like employee temperatures) as well as with reasonable accommodation for those who are at high risk for a serious case of COVID-19. In this article we’ll tackle some of the key terms in the ADA that every employer should be comfortable with.

First, though, let’s cover the basics. The ADA is a federal law that prohibits discrimination against applicants and employees with disabilities and requires that employers provide them with reasonable accommodations under certain circumstances. The law applies to all private employers with 15 or more employees, but many states have similar disability laws that take effect at lower employee counts. Most state disability discrimination laws are similar to the ADA, so even if you’re a very small employer, this article may include useful information.

The original language of the law has been around for roughly three decades. Nevertheless, there’s a lot of confusion about what the law requires and what its terms entail. A big reason for this confusion is the language of the law itself; the ADA has nebulous concepts, such as undue hardship and reasonable accommodation. Words like undue and reasonable are by their nature open to some interpretation, which is not exactly a comfort to employers.

Fortunately, while there’s no getting completely around the inherent ambiguity of the ADA, employers can feel more confident in their application of the law by reviewing and understanding its most important concepts, so below we’ll look at four key terms worth knowing.

Disability

Let’s start with the term disability. According to the ADA, a person with a disability is someone who has a physical or mental impairment that substantially limits one or more major life activities, someone who has a history or record of such an impairment, or someone who is regarded as having such an impairment.

While the law does not have a list of impairments that are covered, it does identify some major life activities that could be limited by a disability. These include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. Major life activities also include major bodily functions (e.g., the immune system, digestive functions). In short, the definition of disability under the ADA is broad.

The most often misunderstood part of this definition is the phrase “regarded as disabled.” This phrase becomes important if the employer takes any adverse action because they believe a disability may exist. For example, if a hiring manager removes a candidate from consideration (adverse action) because the manager believed, rightly or wrongly, that the candidate has social anxiety, then the manager has illegally discriminated against the candidate because they regarded the candidate as disabled. In this situation, the candidate — even if they did not have social anxiety — would have a claim under the ADA.

Reasonable Accommodation

Employers also encounter the ADA when an applicant or employee asks for a reasonable accommodation. According to the Equal Employment Opportunity Commission (EEOC), a reasonable accommodation is “any change in the workplace or the way things are customarily done that provides an equal employment opportunity to an individual with a disability.” Reasonable accommodations “can cover most things that enable an individual to apply for a job, perform a job, or have equal access to the workplace and employee benefits such as kitchens, parking lots, and office events.”

Common types of accommodations include modifying work schedules, altering the way job duties are done, eliminating a non-essential job duty (like asking the receptionist to stack the monthly 100 lb paper delivery in the storage room), granting additional breaks, providing accessible parking, and providing materials in alternative formats (e.g., Braille, large print). During the pandemic, working from home is an oft-requested accommodation that will almost always be reasonable for employees who do most of their work at a computer.

Not every requested accommodation will be reasonable, however. For one, employers are not required to remove an essential job function (the receptionist can still be expected to answer the phone). Employers also aren’t required to provide items for personal use, like wheelchairs or hearing aids.

If an accommodation is made, it’s important to evaluate its effectiveness. An accommodation set up today might not work well for the employee or the company two years from now. It’s okay to reassess later whether an accommodation remains reasonable given changed circumstances.

Undue Hardship

Under the ADA, an employer is required to provide reasonable accommodations as long as doing so does not create an undue hardship on the organization. According to the EEOC, an undue hardship is a significant difficulty or expense. The cost of an accommodation could be an undue burden on the employer, but so could an accommodation’s duration, expansiveness, or disruption.

An accommodation that would fundamentally alter the nature or operation of the business would be an undue hardship, even if the cost was negligible. But if cost alone is the basis for claiming that an accommodation is unreasonable, employers should remember that the standard is “significant expense.” The federal regulations instruct employers to consider the size of the organization and affected facility, their overall financial resources, and any tax credits, deductions, or outside funding available. Whether an accommodation would cause an undue hardship is something employers must assess on a case-by-case basis.

Interactive Process

If an employee requests an accommodation, such as working from home during the pandemic or taking an unpaid leave if their job doesn’t lend itself to telework, the employer should engage in an interactive process to determine if that request is reasonable. The EEOC describes the interactive process this way: the employee and the employer “communicate with each other about the request, the precise nature of the problem that is generating the request, how a disability is prompting a need for an accommodation, and alternative accommodations that may be effective in meeting an individual’s needs.”

Basically, the interactive process is an ongoing conversation with an employee who has indicated that they need an adjustment or change at work related to a physical or mental issue. They may specifically request a reasonable accommodation under the ADA, but expressing their needs in “plain English” is acceptable as well. Then, together, the employer and the employee determine what can be done to accommodate the employee so that the essential functions of the job get done and the employee is able to enjoy the equal benefits and privileges of employment.

Keeping these core concepts in mind can make accommodation requests easier and smoother. If you’d like to learn more about the Americans with Disabilities Act, search ADA on the HR Support Center. We have guides, 2-Minute HRs, and other articles on this important law.

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FFCRA Leave – Significant Rule Changes

A federal court in New York recently struck down four federal Department of Labor rules related to the leaves provided by the Families First Coronavirus Response Act (FFCRA). As a result, certain aspects of the FFCRA are now more favorable to employees. Unfortunately, it’s not clear if the ruling applies nationwide or only in the Southern District of New York, where the court is located. Until there is further activity in the case—which may clarify whether the rules remain intact throughout the rest of the country—we recommend that employers err on the side of caution when administering FFCRA leaves and assume these particular rules no longer apply.

What is clear is that these four rules definitely do not apply to the counties of Bronx, Dutchess, New York, Orange, Putnam, Rockland, Sullivan, and Westchester (i.e., the Southern District of New York).

Here are the rules that the court invalidated:

The requirement that work be available for an employee to use leave

  1. DOL Rule: The DOL said that for an employee to use Emergency Paid Sick Leave (EPSL) or Emergency Family Medical Leave (EFMLA, aka EFMLEA), the employer had to have work available for them during the time they needed leave. For instance, if an employee was furloughed while sick with COVID-19, they would not be eligible for EPSL.
  2. The Court’s Ruling: Availability of work is irrelevant. If an employee is still employed, whether on the schedule or not, they should be allowed to use FFCRA leave for qualifying reasons.

The requirement that employers agree to intermittent leave

  1. DOL Rule: Employees must get approval from their employer to use intermittent leave to care for their children when their school or place of care is unavailable because of COVID-19.
  2. The Court’s Ruling: If an employee needs intermittent leave (partial weeks or partial days off) to care for their child whose school or place of care is unavailable because of COVID-19, the employer must allow it.

The requirement that employees provide documentation before taking leave

  1. DOL Rule: Employers could require that employees provide certain documentation before being allowed to take FFCRA leave or before designating the leave as EPSL or EFMLA.
  2. The Court’s Ruling: Employers can still require documentation (which is necessary to get their tax credit), but they can’t prevent an employee from starting leave until the documentation is received. The law clearly states that an employee must provide notice “as is practicable” when taking EFMLA and after the first workday of leave when taking EPSL.

The definition of health care provider, for the purpose of exemption from leave

  1. DOL Rule: The DOL defined health care providers very broadly, to include anyone who works for a healthcare entity and many who contract with one. (The rule was so broad that a custodian working at a drugstore or an English professor at a university with a medical school could be exempt.)
  2. The Court’s Ruling: The definition is too broad. However, the court did not provide a new definition. We recommend that employers apply the exemption only to those employees capable of directly providing healthcare services.

We will be watching closely for activity in this case and will let employers know if and when things change or become clearer. 

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Leading During a Pandemic

No one knows what the workplace is going to look like in three months. COVID-19 continues to spread. School reopening and attendance plans remain tenuous. Further action from Congress is uncertain. Official rules from the Department of Labor might even be struck down in court, further adding to the confusion about what employers are supposed to be doing.

Leading an organization right now can feel like driving to a destination you’re not sure exists on a road that’s changing right before you.

In this situation, we need to accept that the typical ways of leading a team may not prove successful. The simple question of what success looks like right now isn’t easy to answer with either clarity or consistency. For instance, conventional wisdom around goal setting says that goals should be specific, measurable, attainable, relevant, and time-bound (SMART goals). But the pandemic has made it much more difficult to pin any of these down. Think of the movie studio executives attempting to calculate the risks of releasing a feature film on a streaming service instead of in movie theaters. Or grocery store employees trying to mandate mask-wearing and social distancing when some vocal customers don’t want to cooperate. What success looks like in these situations is not at all clear.

While it’s unlikely that leaders can bring true clarity and certainty to the present moment, there are leadership practices that can help promote the well-being of the organization and its people. We recommend the following:

  • First and foremost, ensure that employees are healthy and safe in the workplace. Stay up to date with the latest safety guidelines. Provide employees with adequate PPE, cleaning supplies, and safety training, and prioritize their health and safety when making business decisions. If your employees are doing fine working from home, don’t feel pressure to return them to the office just because that’s the way things used to be. If they want to take extra measures to protect themselves at work, allow it. If they suggest modifications that they feel will make everyone safer, seriously consider investing in those changes.
  • Enforce the rules. Employees desire and deserve safety (and OSHA requires it) and are looking to their leaders to create and maintain stability. Although you may have some “squeaky wheels” who are vocal about not wanting to follow the rules — whether that’s wearing a mask in the office or turning on their video for Zoom meetings — consistency will be essential to keeping the workplace both safe and orderly during these strange times. Enforcing company rules and policies, along with the rules of your state or locality, will increase both safety and overall trust in leadership.
  • Be compassionate and fair. The mental and physical stress of the pandemic is affecting people differently, so they may need different treatment. This doesn’t mean bending the safety rules for those who don’t like them or letting employees overlook basic online etiquette because they’re stressed out. It does, however, mean adjusting your expectations when employees are in a caregiving role, sick themselves, lonely, anxious, dealing with children who are home 24/7 for the foreseeable future, living with unruly pets, or all of the above. Productivity may be down, and it may stay that way for quite some time. If it’s any consolation, nearly every organization in the nation is dealing with the same issues right now. Even for companies whose profits are up, productivity, morale, and scheduling are a struggle. Good leaders will accept the situation and set about making it as workable as it can be for employees and the organization as a whole.
  • Focus on the overall mission of your organization. Analysis from Gallup indicates that people in a crisis look to their leaders for trust, compassion, stability, and hope. We’ve already talked about the first three, but don’t underestimate the need for hope right now. Do what you can to reach out proactively to employees and ensure they understand how their work is connected to the mission and success of the organization. Remind everyone of what you’re all doing and why you’re doing it. Hard numbers and specific projections are still important, but they may not be the most important thing to highlight at this time. Where numbers fail, knowing that at the end of the day (month, or year) your organizations will still be able to deliver a quality product or service that will make the lives of your clients and customers better can go a long way toward instilling hope. 

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DHS Relaxes In-Person I-9 Inspection Requirements

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.

On March 20, 2020, the Department of Homeland Security announced that effective immediately, the physical presence requirement has been temporarily suspended 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. On August 18, DHS announced another 30-day extension of this temporary rule. The rule is now set to expire on September 19, 2020.

The USCIS has guidance, including example forms, is available here

Limitations and Liabilities

  • If there are employees physically present at a work location, then in-person verification of identity and employment eligibility documentation for Form I-9 continues to be required. However, if newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate this on a case-by-case basis.
  • Employers may designate an authorized representative to act on their behalf to complete Section 2 and may be any person the employer designates to complete and sign Form I-9 on their behalf. However, employers are liable for any violations in connection with the form or the verification process, including any violations in connection with the form or the verification process, including any violations of the employer sanctions laws committed by the person designated to act on the employer’s behalf.

Section 2 Documents Must be Inspected Remotely

Employers must still inspect the Section 2 documents but may do so remotely (for instance, over video link, fax, or email). Employers must also obtain, inspect, and retain copies of the documents they inspect, within three business days so as to complete Section 2. Employers are also directed to:

  1. Enter “COVID-19” as the reason for the physical inspection delay in the additional information field of Section 2 once physical inspection takes place after normal operations resume; and
  2. Add “documents physically examined,” with the date of inspection to either the additional information field of Section 2 or to section 3 (as appropriate) once the documents have been physically inspected.

Employers may implement remote document inspections until May 19, 2020 (“up to 60 days from the date of the announcement”) or within three business days after the termination of the National Emergency, whichever comes first. Importantly, employers who implement remote onboarding and telework policies must provide documentation for each employee. This burden rests solely with the employers.

In-Person Verification Required after Normal Operations Resume

Once normal operations resume, all employees who were onboarded using remote verification must report to their employer within three business days for in-person verification of identity and employment eligibility documentation they presented for their Form I-9. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 additional information field or to section 3, as appropriate.

Any audit of subsequent Forms I-9 would use the “in-person completed date” as a starting date for record retention purposes for these employees only.

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Contempo COVID-19 Employer Update

The IRS and U.S. Department of Labor announced their plans for new Federally mandated paid sick leave with Families First Coronavirus Response Act (FFCRA).
Employer items to note include:

  • Employees directly affected by COVID-19 illness are entitled to up to 2 weeks of fully paid Emergency Paid Sick Leave.
  • Employees can also receive benefits under the Emergency Family Medical Leave Expansion Act. This will provide both job-protected leave and 2/3 replacement pay during a period of absence from 3 to 12 weeks for absences related to the care of a child during school shut-downs.
  • Both of these new leaves will be paid by employers and funded by the US government via the retention and use of payroll tax funds employers would otherwise pay to the IRS in the form of 941 payroll tax deposits. If those amounts are insufficient to cover the cost of the new paid leave, employers can seek an “expedited advance” from the IRS by submitting a “streamlined claim form” that will be released shortly.
  • The Department of Labor and the IRS will be providing additional details and guidance on the specifics and the implementation of the FFCRA on March 25th.
  • The Department of Labor will also release a new required workplace poster outlining these new employee rights under the FFCRA.

It may be hard for business owners affected by COVID-19 business slowdowns to imagine how they can bear additional effort and expense. We encourage anyone with these concerns to read the information in the web links below carefully:

We encourage all Contempo HCM clients to visit our online HR Support Center for additional tools and resources related to COVID-19. We are continually updating our HR Support Center as new information and guidance becomes available. You can learn more about the details of these leaves (who is covered, what it’s for, duration, etc.) on the HR Support Center by searching for “FFCRA.”