Posted on September 18, 2020

Without Extension, Exemption Would Have Expired Sept. 19

Because of the ongoing COVID-19 pandemic, the U.S. Department of Homeland Security (DHS) is allowing employers that are operating remotely to conduct a remote verification of approved Form I-9 documents. On Sept. 15, 2020, DHS extended yet again this exemption for an additional 60 days. The new expiration date for the exemption is now Nov. 19, 2020.  This exemption applies only to employers and workplaces that are operating remotely. The original news release explains how to obtain, remotely inspect and retain copies of the identity and employment eligibility documents to complete Section 2 of Form I-9. 

Employers should continue to monitor the DHS website for additional updates about when the extensions end and normal operations resume. 

E-Verify participants who meet the criteria and choose the remote inspection option should continue to follow current guidance and create cases for their new hires within three business days from the date of hire. Click here for more information on how the DHS is responding to COVID-19 issues. 

 

 

 

 

 

© 2020 HR 360, Inc.

Posted on September 15, 2020

Until Jan. 1, 2023, Employer Burden to Prove Certain Employees did not Contract COVID-19 on the Job

On Sept. 1, 2020, California amended its workers’ compensation (WC) law, under Senate Bill 1159 (SB1159), to provide a presumption that COVID-19 is a compensable, work-related condition under certain circumstances. The bill is expected to be signed into law but will otherwise go into effect on Sept. 30, 2020.

Under the bill, if certain employees test positive for COVID-19 within 14 days after working away from their homes at their employers’ direction, the illness will be presumed compensable. Employers that wish to dispute an employee’s presumptively compensable claim for COVID-19 may still present evidence to rebut that presumption. However, the bill requires employers to dispute this type of claim within 30 or 45 days, rather than within the 90 days that are allowed for other types of claims. 

A similar presumption was previously implemented under Executive Order N-62-20, but that had only applied for employees who worked outside their homes between March 19 and July 5, 2020. With some modifications, the new law adopts and expands that order to cover certain employees through Jan. 1, 2023. It also creates retroactive and ongoing reporting requirements for employers with five or more employees in the state. 

© 2020 HR 360, Inc.

Posted on September 14, 2020

Revisions Take Effect Sept. 16

The U.S. Department of Labor (DOL) has issued revisions to regulations that implement the paid sick leave and expanded family and medical leave provisions of the Families First Coronavirus Response Act (FFCRA). The revisions respond to a New York federal court decision vacating four parts of the regulations.
 
The revisions:

• Reaffirm and provide additional explanation for the requirement that employees may take FFCRA leave only if work would otherwise be available to them.
• Reaffirm and provide additional explanation for the requirement that an employee have employer approval to take FFCRA leave intermittently.
• Revise the definition of “healthcare provider” to include only employees who meet the definition of that term under the Family and Medical Leave Act regulations or who are employed to provide diagnostic services, preventative services, treatment services or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care.
• Clarify that employees must provide required documentation supporting their need for FFCRA leave to their employers as soon as practicable (rather than always prior to taking leave).
• Correct an inconsistency regarding when employees may be required to provide notice of a need to take expanded family and medical leave to their employers, by clarifying that  advance notice is not prohibited and is typically required if the need for leave is foreseeable, such as when an employee has advance notice of a school closing.

The revisions take effect Sept. 16, 2020.

© 2020 HR 360, Inc.

Posted on September 14, 2020

Statewide Requirement Extends Leave to Workers Exempted from FFCRA

California has enacted a new law that requires supplemental paid sick leave statewide for workers for COVID-19-related purposes, effective Sept. 19, 2020. Under the law, employers must provide leave to individuals who were exempted from emergency paid sick leave under the federal Families First Coronavirus Response Act (FFCRA).

Workers are eligible for paid leave under California’s new law if:

• Their employer has 500 or more employees in the United States; or  
• The worker is a health care provider or emergency responder whose employer elected to exclude those workers from the FFCRA’s emergency paid sick leave requirements.
  

In addition, the individual must be unable to work because:

• He or she is subject to a federal, state or local quarantine or isolation order related to COVID-19;
• A health care provider has advised him or her to self-quarantine or self-isolate due to concerns related to COVID-19; or
• The employer has prohibited him or her from working due to health concerns related to potential transmission of COVID-19.  

Individuals who do not leave their residence to work for their employer are not eligible. Certain food sector workers covered by a separate leave requirement are also ineligible.

 

© 2020 HR 360, Inc.

Posted on September 11, 2020

Contribution and Benefit Amounts to Increase in January

The New York State Department of Financial Services has announced that for calendar year 2021, employers may deduct 0.511% of an employee’s weekly wage, up to an annual cap of $385.34, to pay the premium cost for state paid family leave insurance.
 
Effective January 1, 2021, eligible employees are entitled to up to 12 weeks of paid family leave in any 52-week period at 67% of their average weekly wage, capped at 67% of the state average weekly wage ($1,450.17), which is $971.61.

For more information, see the New York Paid Family Leave website.

© 2020 HR 360, Inc.

Posted on September 11, 2020

The Amendments Became Effective Sept. 4

On Sept. 4, 2020, California amended the list of occupations exempted from using the state’s employee classification test, also known as “the ABC test” (AB 5). When the ABC test is not required, including when an exemption applies, employers may need to revert to previous methods to determine whether a worker is an employee or an independent contractor.

Modified List of Exempt Occupations

The amendments modified the business-to-business, referral agency and freelance writer exemptions. The amendments also added the following new exemptions (see full text for details):

• Recording artists, songwriters, lyricists, composers and related occupations;
• Musicians (for single-engagement live performance event);
• Individual performance artists;
• Licensed landscape architects;
• Freelance translators;
• Registered professional foresters;
• Home inspectors and persons who provide underwriting inspections, premium audits, risk management or loss-control work for the insurance industry;
• Manufactured housing salespersons;
• Persons engaged in conducting international and cultural exchange visitor programs;
• Competition judges with specialized skill sets;
• Digital content aggregators who serve as licensing intermediaries for digital content;
• Specialized performers hired to teach a master class for no more than one week; and
• Feedback aggregators.

Public Enforcement

AB 5 permits the state attorney general or a city attorney in a city with a population over 750,000 to bring an action for injunctive relief to prevent continued misclassification of workers. 

The amendments expanded this provision to allow any district attorney in the state to bring an action for injunctive relief.

 

 

 

 

© 2020 HR 360, Inc.

Posted on September 11, 2020

New Rate Applies Between Jan. 1 and Dec. 31, 2021

On Aug. 31, 2020, the U.S. Department of Labor (DOL) announced that the minimum wage rate for federal contractor employees will increase from $10.80 to $10.95 per hour on Jan. 1, 2021. The minimum wage rate for  federal contractor employees is subject to annual adjustments as required by Executive Order 13658 (the Order). 

Tipped Employees

Tipped employees covered by the Order will also see their cash wage increase from $7.55 to $7.65 per hour on Jan. 1, 2021. 

A covered tipped employee’s tips when combined with the $7.65 per hour cash wage must be at least equal to the applicable minimum wage rate for federal contractor employees. Federal contractors must subsidize a covered tipped employee’s wages if his or her tips and cash wage are less than the required minimum wage rate.

Affected Contracts

The Order applies to:

• All contracts for construction covered by the Davis-Bacon Act; 
• Contracts for services covered by the Service Contract Act; 
• Concessions contracts, such as contracts to furnish food, lodging, automobile fuel, souvenirs, newspaper stands, and recreational equipment on federal property; and 
• Contracts to provide services, such as child care or dry cleaning, in federal buildings for federal employees or the general public.

A few limited exclusions apply to some workers. The DOL has published resources employers can use to review the Order’s requirements. 

© 2020 HR 360, Inc.

Posted on September 09, 2020

The DOL Is Currently Exploring Options to Challenge the Lower Court’s Ruling 

On Sept. 8, 2020, a federal district court struck down parts of the U.S. Department of Labor (DOL) joint employer rule. This new rule became effective March 16, 2020. The district court judge found that the current DOL test was inconsistent with the Fair Labor Standards Act (FLSA) and failed to justify or account for its costs to workers.

The DOL holds joint employers equally and individually responsible for compliance with labor and employment laws. The DOL looks at joint employment situations to prevent scenarios where one organization avoids complying with labor standards by using another employer as a “shield.”  

Vertical joint employment situations arise when an employee works for one company, but another individual or entity simultaneously benefits from that work. Typically, this scenario applies to individuals hired by staffing agencies or subcontractors, that are economically dependent on another employer. Vertical joint employment situations are much more common than horizontal joint employment scenarios. 

The Court’s Decision

The district court judge ruling vacated the DOL’s vertical joint employment test, arguing that it was too narrow and inconsistent with the FLSA’s broad interpretation of the term “employ” as “to suffer and permit to work.” 

In addition, the judge explained that while it is generally acceptable for a federal agency to shift its stance on any issue, the agency can only do so when it provides good reason for the change. The judge then proceeded to remark that the DOL provided no explanation for adopting a more restrictive joint employment rule and that the DOL failed to address critical questions raised during the comment period between the notice of proposed rulemaking and the announcement of the final rule. 

Next Steps for Employers

• Employers should become familiar with the DOL joint employment rule and the district court’s decision and identify any co-employment situations within their workforce that may have been affected. 
• The DOL is currently evaluating their legal options to respond to this judicial decision. Employers should continue to monitor the DOL website for guidance and developments on the joint employment rule.

 

© 2020 HR 360, Inc.

Posted on September 08, 2020

New FAQs Address Questions Employers May Ask to Screen Employees for COVID-19 and ADA Requirements for Handling Employees’ Medical Information 

On Sept. 8, 2020, U.S. Equal Employment Opportunity Commission (EEOC) issued additional answers to frequently asked questions (FAQs) about how employers should comply with the Americans with Disabilities Act (ADA) during the coronavirus / COVID-19 pandemic. The additional FAQs, which address the types of information employers may or may not require from employees, how employers must handle employees’ medical information and other ADA issues, were added to guidance that the EEOC originally issued on March 18 and updated in April, May and June 2020. The existing guidance also addresses workplace accommodations, medical exams and other ADA-related issues.  

 

© 2020 HR 360, Inc.

Posted on September 01, 2020

Requirement Applies to Employers that Offer Prescription Drug Coverage

Employers who sponsor group health plans that offer prescription drug coverage to Medicare-eligible individuals must provide a Medicare Part D Creditable or Non-Creditable Coverage Notice to those individuals before October 15.

These notices inform Medicare-eligible individuals whether the plan’s prescription drug coverage is expected to pay, on average, as much as the standard Medicare prescription drug coverage (meaning it is "creditable”).

For more information on this notice requirement, including links to downloadable model notices, click here.

© 2020 HR 360, Inc.

Posted on September 01, 2020

Deferred taxes must be recouped between Jan. 1 and Apr. 30, 2021

On Aug. 8, 2020, President Donald Trump ordered the U.S. Department of Treasury (the Department) to defer collecting certain payroll taxes from wages earned between Sept. 1 and Dec. 31, 2020. 

On Aug. 28, 2020, the Internal Revenue Service (IRS) issued Notice 2020-65 (the Notice) to provide guidance for affected employers. Employer participation in these deferrals is permitted, but not required. 

Eligibility for Deferred Payroll Taxes

The Notice releases employers from their obligation to collect and pay payroll Social Security taxes for individuals who receive applicable wages, defined as compensation that is less than $4,000 for a biweekly pay period, or “the equivalent threshold amount with respect to other pay periods.” 

Employers must determine whether applicable wages exist every pay period between Sept. 1 and Dec. 31, 2020. 

Recoupment of Payroll Taxes

The Notice informs employers that any taxes deferred between Sept. 1 and Dec. 31, 2020, will need to be collected and remitted to the IRS between Jan. 1 and Apr. 30, 2021, unless the Department can find an avenue to eliminate the obligation to pay the deferred taxes. Interest, penalties and additions to tax will begin to accrue on May 1, 2021, for any unpaid deferred taxes. 

Employers will need to pay these deferred taxes in addition to collecting and remitting the taxes that regularly become due during the Jan. 1 to Apr. 30 pay period. 

The Notice also explains that employers will be allowed to make arrangements with affected employees to collect deferred taxes in 2021.

© 2020 HR 360, Inc.

Posted on September 01, 2020

Employers Can Rely on Opinion Letters to Establish Good Faith Compliance Under the Law

On Aug. 31, 2020, the U.S. Department of Labor (DOL) published four new opinion letters. Opinion letters provide the DOL’s official position on how labor and employment standards, in this case the Fair Labor Standards Act (FLSA), apply in specific situations. Below is an overview of the four new opinion letters:  

• Retail Exemption for Truck Drivers: FLSA2020-11 patterns the analysis employers must use to determine whether truck drivers working for a retail establishment qualify for the “retail or service establishment exemption.” While the facts are specific to the gas and oil industry, the underlying principles have greater applicability.
• Use of Personal Vehicle for Business: FLSA2020-12 addresses whether to reimburse nonexempt hourly employees who use their vehicle to further their employer’s business for expenses related to their vehicle, including: gas, oil, routine maintenance and repairs, fixed vehicle expenses, registration fees, license fees and insurance costs not required by the employer.  
• Exemptions for Part-time Employees: FLSA2020-13 addresses how the learned professional exemption and the highly compensated employee test apply to part-time employees who provide training for a day rate with additional hourly compensation. 
• Fluctuating Workweek Clarification: FLSA 2020-14 clarifies that the fluctuating work week overtime calculation method does not apply only to employees whose hours of work fluctuate above and below the 40-hour workweek threshold. This means that employers can use the fluctuating workweek method for employees whose hours of work fluctuate only above 40 hours per workweek.

Employers that rely on opinion letters may be able to establish a “good faith defense” under the law. As a result, employers should review the scenarios discussed in these letters and determine whether this new guidance affects their current employee classification and payroll practices. The public can search for existing opinion letters by keyword, year, topic and a variety of other filters on  the DOL’s website. © 2020 HR 360, Inc.

Posted on August 31, 2020

New Rate Becomes Effective Jan. 1, 2021

On Aug. 28, 2020, Minnesota announced the following minimum wage rates, effective Jan. 1, 2021: 

• $10.08 per hour for large employers (employers with an annual gross revenue of $500,000 or more)
• $8.21 per hour for other state minimum wages, including:
  • Small employer minimum wage rate (annual gross revenue of less than $500,000);
  • Training wage rate (for employees younger than 20 years of age for the first 90 consecutive days of employment); and
  • Youth wage (for employees younger than 18 years of age).

Please note that higher minimum wage rates may apply under municipal and city laws. Click here for more information.

© 2020 HR 360, Inc.

Posted on August 28, 2020

Without Extension, Exemption Would Have Expired Aug. 18

Because of the ongoing COVID-19 pandemic, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) have announced yet another 30-day extension of the exemption for the physical inspection of Form I-9 documents, until Sept. 19, 2020. 

This exemption applies only to employers and workplaces that are operating remotely. The original news release explains how to obtain, remotely inspect and retain copies of the identity and employment eligibility documents to complete Section 2 of Form I-9.

Employers should continue to monitor the DHS and ICE websites for additional updates about when the extensions end and normal operations resume.

E-Verify participants who meet the criteria and choose the remote inspection option should continue to follow current guidance and create cases for their new hires within three business days from the date of hire. Click here for more information on how the DHS is responding to COVID-19 issues. 

© 2020 HR 360, Inc.

Posted on August 28, 2020

Leave Allowed Only When In-Person Learning Is Not an Option

The U.S. Department of Labor (DOL) has published new frequently asked questions (FAQs) about whether employees qualify for paid leave under the Families First Coronavirus Response Act (FFCRA) in different school reopening situations, including those that blend in-person with distance learning. The DOL's three new FAQs were added to existing FFCRA FAQs on Aug. 27, 2020.

The new FAQs address employee eligibility for expanded family and medical leave and paid sick leave when:

• A child attends a school operating on an alternate-day basis;
• A parent chooses remote learning when in-person instruction is available; and
• A school begins the year with remote learning but may shift to in-person instruction if conditions change.

In general, according to the FAQs, parents qualify for FFCRA leave only on days when in-person learning by the child is not permitted by the school. Parents may be eligible for FFCRA leave if the child has been advised to quarantine or isolate.

The FFCRA allows certain employees to take up to two weeks of paid sick leave and up to 12 weeks of expanded family and medical leave, 10 of which are paid, for specified reasons related to COVID-19. An eligible employee can take both types of paid leave because of a need to care for the employee’s son or daughter whose school or place of care is closed, or whose child care provider is unavailable, due to COVID-19 related reasons.

© 2020 HR 360, Inc.

Posted on August 19, 2020

Qualified Plans to Benefit Adversely Affected Employees Permitted

In recently issued answers to frequently asked questions (FAQs), the IRS said employers may set up leave-sharing plans under IRS Notice 2006-59 to benefit employees adversely affected by the COVID-19 pandemic. The FAQs explain that leave-sharing plans permit employees to deposit leave in an employer-sponsored leave bank for use by other employees who have been adversely affected by a major disaster.
 
Employees depositing leave pursuant to a qualifying plan do not include the leave in income or wages, but they may not claim an expense, charitable contribution or loss deduction for the deposited leave. Qualifying plans must meet requirements set forth in IRS Notice 2006-59.

© 2020 HR 360, Inc.

Posted on August 18, 2020

FEPLA Law Provides 12 Weeks of Paid Parental Leave

The U.S. Office of Personnel Management (OPM) has published an interim final rule to implement the Federal Employee Paid Leave Act (FEPLA), which provides paid leave to certain federal employees covered by the Family and Medical Leave Act (FMLA). The rule takes effect Oct. 1, 2020, the same date leave becomes available under the FEPLA.

The FEPLA, enacted Dec. 20, 2019, allows covered employees to substitute up to 12 weeks of paid parental leave for FMLA unpaid leave granted in connection with the birth or placement (for adoption or foster care) of a son or daughter. Employee eligibility requirements include 12 months of past employment and a written commitment to work for 12 weeks after the leave ends.

Comments on the rule must be received by Sept. 9, 2020.

© 2020 HR 360, Inc.

Posted on August 18, 2020

Information Current as of July 31, 2020

The Department of Labor (DOL) has released a new model Employer CHIP Notice with information current as of July 31, 2020. As a reminder, employers with group health plans that cover participants in states that provide premium assistance subsidies through Medicaid or the Children’s Health Insurance Program (CHIP) are required to notify their employees annually, regardless of the employer’s location.

The DOL’s model notice, which employers may use for this disclosure, is updated periodically to reflect changes in the states that offer premium assistance subsidies, as well as the contact information for those states. Click here for more information.

© 2020 HR 360, Inc.

Posted on August 11, 2020

Health and Welfare Rate Required Only for Concurrent Leaves

The U.S. Department of Labor (DOL) has issued questions and answers (Q&As) on when federal contractors must include Service Contract Act (SCA), Davis-Bacon Act (DBA) or Executive Order 13706 fringe benefits--or their monetary equivalent--for workers taking leave under the Families First Coronavirus Response Act (FFCRA).

According to the Q&As, federal contractors whose work is covered by the SCA, the DBA or Executive Order 13706 generally do not have to pay the health and welfare fringe benefit rate that those laws and order would normally require when employees take FFCRA paid sick leave or expanded family and medical leave. The Q&As explain that the FFCRA mandates compensation only at the employee’s regular rate, which does not include the health and welfare fringe benefit rate.

However, when FFCRA leave is taken concurrently with leave under the SCA, DBA or order, the fringe benefit rate does have to be provided to the employee on leave, if the employer was providing cash in lieu of fringe benefits.

In either situation, any employee health insurance benefits must be continued as if the employee were working.

The SCA and DBA require certain federal contractors to pay their workers at least the local prevailing wage rate, including fringe benefits. Executive Order 13706 mandates that contracts covered by the SCA and DBA provide workers with accrued paid sick leave.

© 2020 HR 360, Inc.

Posted on August 10, 2020

The Department of Treasury Will Stop Collecting Certain Payroll Taxes Between Sept. 1 and Dec. 31

On Aug. 8, 2020, President Donald J. Trump ordered the U.S. Department of Treasury (the Department) to defer collecting certain payroll taxes from Sept. 1 to Dec. 31, 2020. Because the order is for a deferral, the unpaid taxes will need to be recouped at a later time, unless the Department can find an avenue to eliminate the obligation to pay the taxes. 

Eligibility for Deferred Payroll Taxes

Under the order, employers will be able to defer taxes that help pay for Social Security for individuals who receive less than $4,000 during any bi-weekly pay period (the equivalent of $104,000 per year) on a pre-tax basis. 

Affected taxes will be deferred without any penalties, interest, additional amount or addition to the tax. The White House’s position is that deferring this tax will alleviate the hardship of individuals affected by the economic consequences of the COVID-19 pandemic. 

Implementation Obstacles

Government agencies hold employers and payroll providers responsible for withholding an adequate amount of payroll taxes from their employees’ wages and compensation. 

At this time, it is still unclear whether employers will opt to release the affected payroll taxes to eligible employees for two reasons:  

1. Implementing changes in payroll processes and procedures is not always a quick or easy process—an obstacle aggravated by the fact that the Department has a scarce few weeks to issue guidance to implement this presidential directive; and
2. There is a possibility that the deferred taxes will need to be collected at a future date. 

Next Steps for Employers  

• Employers should actively monitor upcoming guidance from the Department of Treasury
• Employers should balance the benefit of releasing affected taxes to eligible employees against the possibility of having to recoup those taxes later
• Employers should take time to evaluate now how quickly they can alter their payroll practices and procedures in case they decide to opt for this payroll tax deferral

 

 

 

© 2020 HR 360, Inc.