COVID-19: EEOC Says Employers Can Test Employees Before Returning to Work

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April 23, 2020

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The Equal Employment Opportunity Commission (EEOC) recently updated its “What You Should Know” website with information related to testing for COVID-19. Specifically, the EEOC says that employers may require employees to be tested for COVID-19 before permitting them to return to work. What does this entail?

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COVID-19: Temporary Form I-9 Process Change for Remote Workers

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March 20, 2020

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The Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) recently announced flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification, due to COVID-19. Specifically, employers hiring remote employees who are taking physical proximity precautions due to COVID-19 will not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence. If employers are performing inspections remotely (e.g., over video link, fax or email, etc.), they must obtain, inspect, and retain copies of the Section 2 documents within three business day of hire. In addition to completing Section 2, Employers also should enter “COVID-19” in the Additional Information field of the form. A physical inspection of original identity and work authorization documents must take place within three business days after normal operations resume. The date of the physical inspection and who conducted it, should also be recorded in the Additional Information field. Employers who avail themselves of this option must provide written documentation of their remote onboarding and telework policy for each employee.

Employers should note that this reprieve only applies to employers and workplaces that are operating remotely. If there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9. For more information on how to complete Form I-9, employers should review the recently updated USCIS Form M274 – Handbook for Employers: Guidance for Completing Form I-9.

Action Items

  1. Ensure use of current Form I-9, which is the only form for authorized use as of May 1, 2020.
  2. Review the USCIS’s Temporary Policies Related to COVID-19.
  3. Update Form I-9 procedures where appropriate.
  4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2020 ManagEase

DOL Opinions Clarify Final Rule on FLSA Regular Rate Requirements

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March 26, 2020

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At the end of 2019, the U.S. Department of Labor (DOL) issued a final rule on regular rate requirements under the Fair Labor Standards Act (FLSA). The DOL recently published opinion letters clarifying how to calculate the regular rate in connection with the final rule.

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COVID-19: Extension of COBRA and ERISA Deadlines; New COBRA Model Notices

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May 4, 2020

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The Employee Benefits Security Administration, the Department of Labor, the Internal Revenue Service, and the Department of the Treasury (“the Agencies”) recently issued a joint notification of relief, extending COBRA and ERISA deadlines and election periods.

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Flexibility for OSHA Employer Obligations in the Wake of COVID-19

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April 16, 2020

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Due to the unprecedented impact of COVID-19 on the global population, OSHA recently issued a memo directing its Compliance Safety and Health Officers (CSHO) to take a practice approach in determining if an employer has made good-faith efforts to comply with safety obligations, such as training, equipment inspections, auditing, and testing.

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5th Circuit: Daily Rate Pay is Not Exempt from Overtime Pay Rules

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April 20, 2020

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On April 20, 2020, in Hewitt v. Helix Energy Sols. Grp., Inc., the Fifth Circuit Court of Appeal stated that an employee who is paid a daily rate is not paid on a “salary basis.” The Fair Labor Standards Act (FLSA) states:

“An employee will be considered to be paid on a ‘salary basis’ within the meaning of this part if the employee regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of the employee’s compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed.”

The court stated that the term “predetermined amount” of pay means that an employee knows what they will be paid before the work is performed. There, an oil rig worker was paid on a biweekly basis a set amount for each day worked. Although the employee knew he would be paid biweekly, the exact amount of pay was not calculated until after the work was performed, because it was based on the number of days worked in the week. The FLSA requires exempt employees to receive the full salary for any week in which work is performed, without regard to the number of days or hours worked, which was not the case there.

Action Items

  1. Review employee overtime exemption status in connection with this ruling.
  2. Update payroll procedures for daily rate workers to include overtime calculations.
  3. Consult with legal counsel for historical corrections.
  4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2020 ManagEase

11th Circuit: Disability Accommodations Must be Equally Afforded for Pregnancy Disability

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April 17, 2020

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In Durham v. Rural/Metro Corp., the Eleventh Circuit Court of Appeal stated that employees with a pregnancy disability must be given the same accommodations as other similarly situated employees with non-pregnancy disabilities. Specifically, the Pregnancy Discrimination Act (PDA) requires that pregnant women “be treated the same . . . as other persons not so affected but similar in their ability or inability to work[.]”

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IMPORTANT: California: NEW Presumption of Employer Liability Under Workers’ Compensation

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May 6, 2020

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Gov. Newsom recently issued an Executive Order stating that employees are presumed to have contracted COVID-19 in the workplace for purposes of receiving workers’ compensation benefits if all of the following are met:

  • The employee tested positive for or was diagnosed with COVID19 within 14 days after working at the employee’s place of employment at the employer’s direction;
  • The work performed occurred between March 19, 2020 and July 5, 2020;
  • The employee’s place of employment was not the employee’s home or residence; and
  • If basing a claim on a diagnosis of COVID-19, the diagnosis must be done by a physician who holds a physician and surgeon license issued by the California Medical Board, and the diagnosis must be confirmed by further testing within 30 days of the date of the diagnosis.

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California: Employer’s Unlimited Vacation Policy is Invalidated by Appeals Court

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April 1, 2020

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In McPherson v. EF Intercultural Foundation, Inc., the California Court of Appeal reviewed the enforceability of an “unlimited” vacation policy for purposes of paying out wages (including unused vacation) on termination. There, the employer had an informal, unwritten vacation policy in which area managers could take time off with pay, but they did not accrue vacation days. The court understood this to mean there was an implied cap on the amount of vacation that could be taken, consistent with the amount that was typically taken in practice (i.e., two to four weeks), rather than vacation actually being “unlimited” (e.g., employees could not reasonably expect to take six months of vacation in a year).

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Massachusetts: In-Person Identity Verification Procedures for Background Checks Modified

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All Employers with MA Employees

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April 9, 2020

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The Massachusetts Dept. of Criminal Justice Information Services (DCJIS) recently issued emergency regulations modifying the process for verifying the identity of an individual for whom a background check will be run through DCJIS’s iCORI database (CORI). As part of the normal CORI process, individuals must provide written authorization to run their criminal history and requestors must verify the individual’s identity in person. Because employers must limit in-person interactions due to COVID-19 and associated public safety restrictions, requestors can verify an applicant’s identity via teleconference rather than the usual in-person process.

Additionally, if a requestor is unable to verify an individual’s identity in person, by notary, or by teleconference, then the requestor may petition DCJIS for approval to use an alternative means to verify identity. Upon termination of the current state of emergency, all CORI requests verified in this manner must be verified either in person or through submitting a notarized CORI Acknowledgement Form within seven business days. Employers should track all individuals verified pursuant to these emergency measures in order to later obtain timely identification verifications.

Action Items

  1. Review the emergency regulation here.
  2. Implement videoconference verification procedures, or request permission to use alternative procedures.
  3. Track individuals verified using video conference or alternative verification procedures.
  4. Once the state of emergency is lifted, review identification documents in person within seven business days.
  5. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2020 ManagEase