COVID-19: CDC Updates Definition of Close Contact

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All Employers

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October 21, 2020

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The CDC recently changed the definition of “close contact” for purposes of determining possible exposure to COVID-19 and contact tracing. “Close contact” now means “[s]omeone who was within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to test specimen collection) until the time the patient is isolated.” (Emphasis added.) Instead of ongoing contact for a period of 15 minutes, employers should be looking at individual exposures added together over a 24-hour period (e.g., three 5-minute exposures for a total of 15 minutes).

The CDC also gave factors to consider when defining close contact: proximity, the duration of exposure, whether the infected individual has symptoms, if the infected person was likely to generate respiratory aerosols (e.g., was coughing, singing, shouting), and other environmental factors (e.g., crowding, adequacy of ventilation, whether exposure was indoors or outdoors). Additionally, because the general public has not received training on proper selection and use of respiratory personal protective equipment (PPE), the CDC says not to take into account whether individuals were wearing respiratory PPE. Similarly, it does not recommend differentiating analysis for individuals using fabric face coverings. Employers should update applicable procedures with these new guidelines.

Action Items

  1. Review the CDC’s website here.
  2. Have managers and contact tracers trained on the current guidance.
  3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

DHS and DOL Narrow Pathway for H-1B Nonimmigrant Visas

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All Employers with H-1B Visa Employees

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As Indicated

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The current administration recently issued two interim final rules (IFR) largely impacting H-1B nonimmigrant visas, making it more difficult for individuals to obtain them.

Effective December 7, 2020, the Department of Homeland Security’s (DHS) IFR revises certain definitions, updates application requirements, and provides USCIS with broader authority to verify an application. In part, it lists specific factors USCIS will consider when determining whether a valid employment relationship exists, including supervision, location of supervision, right to control work on a day-to-day basis, provision of tools/instrumentalities, hire/pay/fire relationship, evaluation of work product, provision of employee benefits, use of proprietary information to perform work, end product linked to line of business, and control of manner and means in which work is performed. It also narrowed the definitions of specialty occupation and third-party worksite. Notably, a third-party worksite cannot be a residence, and visas for workers at third-party worksites are only valid for one year at a time. The IFR also provides specific instructions for documentation that must be submitted with the visa application.

Effective October 8, 2020, the U.S. Department of Labor’s (DOL) IFR increased required wage levels for labor condition applications (LCAs) for H-1B, H-1B1, and E-3 visas, and PERM labor certifications as follows:

  • Level 1 wages from the 17th percentile to the 45th percentile.
  • Level 2 wages from the 34th percentile to the 62nd percentile.
  • Level 3 wages from the 50th percentile to the 78th percentile.
  • Level 4 wages from the 67th percentile to the 95th percentile.

These rules apply to petitions and LCAs filed on or after their effective dates, so they will impact 2022 visas since the deadline for 2021 visa applications passed earlier this year. However, there is already pending litigation challenging these IFR’s. Continue to look for updates on this changing subject.

Action Items

  1. Review visa applications with legal counsel for compliance.
  2. Review fiscal budget for increased wage requirements.
  3. Assess workforce planning for 2022 in light of changes.
  4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

DOL Opines on Pay for Voluntary Training

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All Employers subject to FLSA

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November 3, 2020

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The U.S. Department of Labor (DOL) recently issued opinion letters discussing employee pay for voluntary training and travel time under the Fair Labor Standards Act (FLSA).

FLSA2020-15 reviews when employers must pay for voluntary training, discussing different examples. If the training is sponsored by the employer but voluntary for an employee to attend, the time spent taking the training during off-duty work hours is not considered working time. However, employee participation during regular work hours in a training program that directly relates to the employee’s job is work time for FLSA purposes. Employers may have a policy prohibiting employees from attending voluntary trainings during regular working hours.

FLSA2020-16 discusses travel time between a central location and another worksite. Where an employer requires a foreman to get a company truck from a central location, drive it carrying required tools and materials to a worksite, and return it to the central location at the end of the day for security purposes, the time spent traveling between the central location and the worksite is compensable work time. Conversely, a laborer’s time to travel to and from a local worksite is not compensable, even if they voluntarily choose to ride with the foreman in the company truck. For remote travel (e.g., overnight stay in lodging), an employee must be compensated for their time if their travel cuts across their normal work hours, even if they are traveling on a nonwork day. If the employer offers laborers the option to travel in a Company vehicle or drive themselves to the remote work location, the employer must pay for either the time that accrues riding in the company vehicle or the time the laborers actually take to travel to the remote worksite.

Action Items

  1. Review the opinion letters and have policies and pay processes updated accordingly.
  2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Second Circuit: H-1B Employer Wage Obligations Clarified

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All Employers with CT, NY, and VT Employees

EFFECTIVE

September 22, 2020

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In Aleutian Capital Partners, LLC v. Scalia, the Second Circuit Court of Appeal stated that even though an employer of an H-1B visa employee paid more income than promised in the Labor Condition Application (LCA), the employer violated U.S. Department of Labor (DOL) regulations requiring wage payments that were predictive in amount and timing. The court also said that the DOL was authorized to investigate the terms of employment even though the employee did not file a complaint with the DOL.

There, the employer paid a monthly salary amount below H-1B Program standards in some months and overpaid the employee in other months, resulting in overall wages that were higher than promised. Nonetheless, the employer was obligated to pay back wages for those months that were underpaid, regardless of any bonuses or overpayments that it made in other months. DOL regulations require H-1B employers to make wage payments “when due” in “prorated installments,” “no less often than monthly.”

In the course of a DOL investigation into one employee’s claim, the DOL investigated treatment of another H-1B employee finding wage and hour errors. The court said that “where an investigation into a timely filed complaint reveals that an employer’s failure to conform to an LCA has resulted in a pattern of underpayment that extends earlier than the statute of limitations cut-off, DOL may assess back wages that remedy the full scope of that failure.” More specifically, “it is reasonable … for DOL to seek information from the employer to ensure that it is not applying the same unlawful practices to other H-1B Program employees.” Ultimately, employers risk greater exposure than the claim at issue for failing to follow statutory requirements.

Action Items

  1. Review wage payments of H-1B employees for compliance.
  2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Tenth Circuit: ADA Accommodation Violation Does Not Require Adverse Employment Action

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All Employers with CO, KS, NM, OK, UT, WY Employees

EFFECTIVE

October 28, 2020

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In Exby-Stolley v. Bd. of Cty. Comm’rs, the Tenth Circuit Court of Appeal stated that failing to accommodate a disability under the Americans with Disabilities Act (ADA) is in and of itself grounds for a cause of action and does not require an “adverse employment action.” This is distinguishable from a disparate treatment claim under the ADA requiring that an employer take adverse employment action because of an individual’s disability.

There, an employee broke her arm while on the job and claimed she was not appropriately accommodated in order to do her job. As a result, her performance suffered which led to her separation of employment. However, the focus of the claim was the failure to accommodate her disability, which the ADA states is unlawful discrimination.

This case reinforces employer requirements to engage in the interactive process with employees in good faith to accommodate qualifying disabilities in accordance with the ADA. This ruling further widens the split among the circuit courts on this topic, which may eventually lead to U.S. Supreme Court review.

Action Items

  1. Review interactive process procedures for compliance.
  2. Have appropriate personnel trained on the interactive process requirements.
  3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

California: Computer Professionals and Licensed Physician/Surgeon Exemption Rates for 2021 Increase

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All Employers with CA-Based Computer Professionals and Licensed Physician/Surgeons

EFFECTIVE

January 1, 2021

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The California Department of Industrial Relations (DIR) announced the 2021 exemption rates for certain types of employees.  To qualify as exempt from minimum wage and overtime requirements, employees in these professions must meet certain requirements, one of which includes a compensation threshold.

For computer software employees, the compensation threshold is as follows:

  • Minimum hourly rate of $47.48 (increased from $46.55);
  • Minimum monthly salary increased to $8,242.32 (increased from $8,080.71); and
  • Minimum annual salary increased to $98,907.70 (increased from $96,968.33).

In addition to the compensation threshold, computer software employees must also perform certain job duties to be considered exempt, such as applying highly specialized information to computer analysis, programming, and software engineering.

For licensed physicians and surgeons, the 2021 compensation threshold is a minimum of $86.49 per hour (increased from $84.79).

California’s statewide minimum wage will also increase on January 1, 2021, impacting the compensation threshold for the more general professional, executive, and administrative exemptions.  Employees in these categories must be paid at least two times the state minimum wage, in addition to other requirements.

Action Items

  1. Review compensation rates for applicable employees to ensure exemption salary threshold is met.
  2. Have pay rates and payroll processes updated accordingly.
  3. 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

California: New Guidance on Reporting Requirements for COVID-19 Outbreaks

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All Employers with CA Employees

EFFECTIVE

October 16, 2020

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The California Department of Public Health (CDPH) released additional guidance documents containing instructions on how employers should report outbreaks to local public health agencies.  The guidance documents supplement AB 685, a recent bill that implements COVID-19 reporting requirements effective January 1, 2021.  The new guidance documents provide information on how outbreaks should be reported right now, which closely follows the requirements of AB 685.

The first document, AB 685 Definitions, clarifies some ambiguities in the bill. It defines “outbreak” in a non-healthcare workplace as at least three COVID-19 cases among workers, not customers, at the same worksite within a 14-day period. It also sets forth definitions of the infectious period and laboratory-confirmed case of COVID-19.

The second document, Employer Questions About AB 685, contains an FAQ. It provides further details on what information employers must give to employees who have been potentially exposed to COVID-19, when to report COVID-19 cases to a local health department, and which employers must follow AB 685, among other things.  While AB 685 does not go into effect until January 1, 2021, it is important to note that the current CDPH guidance already requires employers to report outbreaks to local health departments.

Action Items

  1. Review the CDPH guidance documents and implement procedures for reporting COVID-19 cases.
  2. Have applicable personnel trained on reporting and notice requirements.
  3. 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

Colorado: Voters Approve Paid Family and Medical Leave

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All Employers with CO Employees

EFFECTIVE

Upon Governor Declaration

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On November 3, 2020, Colorado voters approved Prop. 118 which permits employees to take up to 12 weeks of paid family and medical leave within a 12-month period. Qualifying reasons include:

  • caring for their own serious health condition;
  • caring for a new child during the first year after the birth or adoption or for foster care of a new child;
  • caring for a family member with a serious health condition;
  • when a family member is on active duty military service or is called for active-duty military service; and
  • when the individual or the individual’s family member is a victim of domestic violence, stalking, or sexual assault.

An additional four weeks of leave are allowed for pregnancy or childbirth complications. Individuals are eligible to receive benefits after they have earned $2,500 in wages that were subject to the paid family and medical leave (PFML) premiums and have been employed by the employer for at least 180 days. Leave may be taken intermittently.

The program will be funded through a payroll tax paid for by employers and employees in a 50/50 split. The first premiums will be paid beginning on January 1, 2023, and benefits will begin to be available on January 1, 2024. The maximum benefit is capped at $1,100 per week for 2024. Businesses with less than 10 employees are exempt from paying the premium. Sole proprietors can opt in to the program.

Employers cannot take disciplinary or retaliatory actions against employees for requesting or using paid leave. Employees who take PFML leave are entitled to return to the same position or a position with the same pay, benefits, and seniority or status. Employees cannot lose their health benefits during their leave and are still be required to pay their health insurance premiums while on leave.

Action Items

  1. Review Prop. 118 here.
  2. Prepare for payroll deductions for leave benefits.
  3. Have employee handbooks and leave policies updated.
  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

Montgomery County, MD: Harassment Claim Standard Relaxed

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All Employers with Montgomery County, MD Employees

EFFECTIVE

January 15, 20221

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Montgomery County recently revised the standard necessary for employees to prove they suffered harassment in the workplace. Specifically, the Human Rights Law no longer uses the “severe or pervasive” standard required under federal law to show that behavior rises to the level of harassment. Rather, harassment has occurred if, in part, “a reasonable victim of discrimination would consider the conduct to be more than a petty slight, trivial inconvenience, or minor annoyance.”

Bill 14-20 further requires one of the following factors be met: (1) submission to the conduct is made either explicitly or implicitly a term or condition of an individual’s employment; (2) submission to or rejection of the conduct is used as a basis for employment decisions affecting the individual; or (3) the conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating a working environment that is perceived by the victim to be abusive or hostile. The same standards and protections were applied to sexual harassment.

Action Items

  1. Review the bill here.
  2. Have harassment training updated with the revised standards.
  3. Have harassment policies updated to reflect the new requirements.
  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

Maine: Final Regulations for Upcoming Earned Paid Leave Now Available

APPLIES TO

All Employers with 10+ ME Employees

EFFECTIVE

January 1, 2021

QUESTIONS?

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In June of 2019, Governor Mills signed into law LD 369 which requires private employers of 10 or more employees to provide employees earned paid leave (EPL). Like paid sick leave, EPL accrues based on hours worked, but unlike paid sick leave, it may be utilized for any reason.  As the effective date of January 1, 2021 fast approaches, the state Department of Labor has released final regulations containing definitions and procedures for implementing the statute.  Employers should note key portions of the guidance as discussed below.

  • Accrual and Carryover: Begins at the start of employment at the rate of one hour per 40 hours worked, up to a cap maximum of 40 hours of EPL per year.
    • Employers may require employees to complete a 120-day waiting period before they may begin using EPL.
    • Employers may choose to frontload the 40 hours instead on either a calendar year or employment anniversary schedule. If employers front-load time and an employee terminates prior to working enough hours to earn leave already taken, employers may deduct used, unearned leave from the last paycheck.
    • Accrued, unused EPL carries over to the next year, up to the 40-hour maximum cap.
  • Usage: EPL must be taken in minimum increments of at least one hour, unless the employer permits EPL to be taken in smaller increments of time.
  • Employee Notice and Scheduling: Employees must provide employer “reasonable notice” of intent to use EPL. Employers may adopt a policy of requiring up to four weeks’ notice of the intent to take leave.  Employers are also permitted to place reasonable limits on scheduling of EPL when it places undue hardship on the employer.
  • Employer Notice: Employers must display the “Regulation of Employment” poster, revision date 09/20.
  • Rate of Pay: EPL is paid at the employee’s regular base rate of pay, including bonuses and commissions. Employers using tip credits must pay EPL at the state’s minimum wage rate.

Action Items

  1. Prepare for implementation of a paid leave policy by 2021.
  2. Have managers and payroll administrators trained on the upcoming requirements.
  3. 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