Management Update

Volume 9, Issue 6

June 2020

OSHA Changes Its April Guidance Regarding the Duty to Record Positive COVID-19 Screens

On May 19 OSHA issued yet another Guidance regarding an employer’s duty to record positive COVID-19 screens. This Guidance, effective May 26, walks back some of the more lenient language of OSHA’s Guidance issued just last month.

Under OSHA’s prior Guidance, most employers only had to record a positive COVID-19 screen if objective evidence indicated that the infection occurred at work.

Effective May 26, OSHA;s new Guidance indicates that all employers covered by the record keeping regulations must investigate a positive COVID-19 screen and treat the case as work-related if it is “more likely than not” the result of workplace exposure. OSHA says it will still use discretion when investigating a failure to record or report, which implies that it will be reticent to issue a citation if an employer can prove that it conducted a reasonable investigation after learning of the positive screen.

The Guidance indicates that in most cases when an employer learns that an employee is infected, an investigation will be sufficient if the employer:

Asks the employee how she believes she became infected;
Discusses with the employee her work and out-of-work activities that may have led to the infection;
Reviews the employee's work environment for potential COVID-19 exposure, taking into special consideration any other workers who have been infected.

Although the Guidance does not specifically require it, employers should consider documenting their investigation. I would recommend that employers quickly develop a standardized form to use for such investigations.

You can find the new Guidance here: https://www.osha.gov/memos/2020-05-19/revised-enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19

DOL Issues Sixth Set of Families First Coronavirus Response Act FAQs and It's a Mixed Bag for Employers

On May 11, the Department of Labor issued its sixth set of FAQs related to the FFCRA. You can find the FAQs here https://www.dol.gov/agencies/whd/pandemic/ffcra-questions#91

The new FAQs are a mixed bag, with a little bit of good and a little bit of not-so-good for employers.

FAQ No. 91 makes it clear that even if an employee has been successfully teleworking while staying at home to care for children whose schools have closed due to COVID-19, the employer must be very careful when asking the employee why they can no longer telework. In addition to requiring the employee to provide the previously known-basic information (name and age of child, name of school, that no other suitable person is available to care for the child…) an employer in this situation may only ask:

“…the employee to note any changed circumstances in his or her statement as part of explaining why the employee is unable to work, you should exercise caution in doing so, lest it increase the likelihood that any decision denying leave based on that information is a prohibited act. The fact that your employee has been teleworking despite having his or her children at home does not mean that the employee cannot now take leave to care for his or her children whose schools are closed for a COVID-19 related reason.”

For the full article visit here.

EEO-1 Reports Now Not Due Until March of 2021

On Friday May 8th, the EEOC issued a Notice announcing a delay in its collection of EEO-1 Component 1 data until March of 2021. (Component 1 data is what we associate with the EEO-1 Report: employment data summarized by job category, race/ethnicity, and gender.)

EEO-1 Reports are usually due on September 30th. In 2019 the EEOC delayed the deadline while it requested a new, three-year approval for the Component 1 Report from the OMB. In announcing the delay, the EEOC explained that:

The EEOC recognizes the impact that the current public health emergency is having on workplaces across America and the challenges that both employers and employees alike are now facing. Filers… are dealing with unique and urgent issues. Delaying the collections until 2021 will ensure that EEO filers are better positioned to provide accurate, valid and reliable data in a timely manner.

Information for 2019 and 2020 will be submitted in the next cycle. As has been publicized recently, the EEOC does not intend to continue collecting the Component 2 pay and hours report.

DOL Updates COBRA Notices

On May 1, the Department of Labor (“DOL”) posted new model COBRA notices and a series of FAQs regarding the model notices. You can find them here https://www.dol.gov/agencies/ebsa/laws-and-regulations/laws/cobra

Although employers should consider using the new model notices, the DOL has acknowledged that use of the notices are not mandatory and would merely be considered evidence of an employer’s good faith compliance, but by the DOL only. Since ERISA provides qualified individuals with an independent right to sue for COBRA violations, a plan sponsor may still be sued for deficient notice even if they use the new model notices. The risk of litigation related to deficient notice has been exponentially increased by furloughs, layoffs and reduction in hours triggered by the COVID-19 pandemic. Still, it would be a good idea for plan sponsors to review their COBRA notices to ensure that they are as up to date as possible.

Treasury Department and SBA Answer PPP Loan Forgiveness Question

One of the primary concerns of employers that have been receiving loans under the Paycheck Protection Program is to make sure that the loan is forgiven.

One key aspect of ensuring forgiveness is that the borrower/employer must spend 75 percent of the loan proceeds on payroll. Many employers have wondered how to address the situation where an employee that was laid off rejects an offer to return to work. The Treasury Department and Small Business Administration have answered that question in an update to the FAQ on Sunday, May 3, 2020.

Question : Will a borrower’s PPP loan forgiveness amount (pursuant to section 1106 of the CARES Act and SBA’s implementing rules and guidance) be reduced if the borrower laid off an employee, offered to rehire the same employee, but the employee declined the offer?

Answer : No. As an exercise of the Administrator’s and the Secretary’s authority under Section 1106(d)(6) of the CARES Act to prescribe regulations granting de minimis exemptions from the Act’s limits on loan forgiveness, SBA and Treasury intend to issue an interim final rule excluding laid-off employees whom the borrower offered to rehire (for the same salary/wages and same number of hours) from the CARES Act’s loan forgiveness reduction calculation. The interim final rule will specify that, to qualify for this exception, the borrower must have made a good faith, written offer of rehire, and the employee’s rejection of that offer must be documented by the borrower. Employees and employers should be aware that employees who reject offers of re-employment may forfeit eligibility for continued unemployment compensation.

Documentation will be critical. The employer/borrower must document both the offer to return to work and the employee’s rejection.

COVID-19 and the New Normal: Return-To-Work Considerations

As states and local governments begin to relax Stay-at-Home orders, many employers are eager to have their employees return to the office and to some sense of normalcy. Many changes to the environment may be necessitated – either legally or practically – by the return to work. Making the health and safety of employees the top priority for employers as they return to the office will not only make some employees more comfortable with returning to work, but may provide some protection for employers faced with later legal claims. While there is no one-size-fits-all approach, there are a number of actions employers should consider while contemplating or continuing a return-to-work in an office setting.

Follow Government Orders and Guidance. Companies should continue to follow local, state, and federal guidance regarding Stay-At-Home orders.

Consider How Employees Will Return to Work. Develop a plan for how and when employees will return to work. If requiring all employees to return on the same day would create an unsafe environment, consider staggered shifts and alternating Work-From-Home days to reduce the number of people in the office at the same time or in close proximity to each other.

Be Mindful of Employee Leave or Disability Accommodation Laws. Some employees may be entitled to continue work from home or remain on leave of absence under state or federal law due to pre-existing health conditions. Further, be certain that the organization’s Human Resources personnel or leaders are familiar with new obligations under the Families First Coronavirus Response Act (FFCRA), which permits paid leave to employees under certain circumstances related to Covid-19 illness or lack of childcare.

For the full article visit here.