It has long been held that the two most emotionally charged issued amongst people are those involving religion and politics. During a Presidential election year, political differences are ramped up more than usual. Given the current social and highly contentious political climate present in America, those differences have an even greater potential to spill over into the workplace.

This is the dilemma facing most employers today. As organizations respond internally and externally to the pandemic, social unrest, climate change and other matters of the day, the reaction is likely to be quite different depending on individual political affiliation. And in today’s “cancel culture,” taking a political or social stance can be too daunting for many organizations—the risks may outweigh the rewards.

It won’t be surprising to see attitudes and rhetoric heat up as we get closer to November 3. And with this year’s election being more of an election season (due to mail in voting), the period of up for personal politics to intersect with the workplace is already upon us.

Various surveys of employees reveal that they have differing viewpoints as to what is appropriate discussion between co-workers. Here are some examples of that from surveys:

• 60% of employees believe discussing politics at work is unacceptable.
  • Female employees are more likely than male employees to believe discussing politics at work is unacceptable (66% of females & to 54% of males).
• Yet 57% say they have engaged in discussing politics at work.
  • 28% of employees say a co-worker has tried to persuade them to change their political party preference in the past year.
• 24% of Republican employees and 23% of Democrat employees would not want to work with a co-worker who plans to vote for a presidential candidate they don’t like in this election.
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  • 25% would consider leaving a company if the majority of their co-workers had different political views than their own.
• 33% of employees state they would not apply to work for a company that actively supports a political party or a social position different than their own.

In Part 2 of this dilemma, we’ll discuss how employers can best address:

1. 1)  Political talk in the workplace
2. 2)  Political statement clothing, including face masks

FOR MORE INFORMATION ON HOW TRINITY CAN HELP YOU WITH ANY PEOPLE-RELATED MATTERS:

• E mail Trinity at info@TrinityHR.net
• Visit our website at www.TrinityHR.net
• Call us at 856.905.1762 or Toll Free at 877.228.6810

You have HR challenges…Trinity has solutions!

WHAT IS TRINITY’S ASSESSMENT OF THE HR FUNCTION?

Trinity’s Human Resources Assessment is a process of examining policies, practices, procedures, forms, records and systems with respect to an organization’s HR function.  It is a diagnostic tool to:

• Highlight strengths
• Identify problem areas (for example, lack of compliance to employment-related regulatory requirements)
• Recommended corrective action
• Provide valuable information for your HR function’s path forward.

WHAT DOES THE HR ASSESSMENT INCLUDE?

• HR-Related Policies – Key policies that are non-existent or not up to date
• Employee Handbook – Review to ensure its up-to-date & content includes appropriate key information
• Fair Labor Standards Act – Determine misclassification of an employee in terms of exempt or non-exempt status
• Fair Labor Standards Act – Review of proper calculation of hours of work and payment of overtime
• Employment Application – Review to ensure it does not ask for prohibited information & assurance of appropriate acknowledgements/authorizations by applicants
• Recruitment & Selection – Review of practices & documentation
• Disciplinary Action Process – Review of investigative process & documentation
• Personnel Files & Recordkeeping – Ensure appropriateness
• Posting of Required Notices – Ensure required notices are properly posted

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WHY IS IT VALUABLE TO YOUR ORGANIZATION?

How sure are you that your company is in compliance with the myriad of complex HR laws & regulations with which it has to comply? The question is an important one given the following four facts:

• The government continues to extend its reach into business activities, especially at the state and local levels.
• The number of employee administrative agency complaints & employment related lawsuits continues to increase.
• The fines and penalties to which you could be subjected can by financially burdening.
• The harm to a company’s reputation & image can have a devastating impact with respect to customers/clients, current and potential employees, suppliers and other individuals or entities.

FOR MORE INFORMATION:

• Email Trinity at info@TrinityHR.net
• Visit our website at www.TrinityHR.net
• Call us at 856.905.1762 or Toll Free at 877.228.6810

YOU HAVE HR QUESTIONS…TRINITY HAS ANSWERS

On June 5th, President Trump signed into law the Paycheck Protection Program Flexibility Act (“PPPFA” or “Act”). This business-friendly law provides greater flexibility for employers receiving loans under the Coronavirus Aid, Relief, and Economic Security (“CARES’) Act’s Paycheck Protection Program (“PPP”). The Act:

1) Extends time frames

2) Expands exemptions

and

3) Modifies other PPP terms affecting potential loan forgiveness and repayment.

Here is some important information about these three provisions of the Flexibility Act:

1) EXTENDED “COVERED PERIOD” FOR USING LOAN PROCEEDS

Initially, under the PPP, loan recipients needed to spend PPP loan proceeds on approved expenses within a period of eight weeks to potentially qualify for loan forgiveness.

• Many businesses expressed concern that an eight week period was simply too short of a time period.

The new law expands this period so that borrowers may now spend their PPP loan amounts over the EARLIER of:

(a) A period of 24 weeks from the origination of the Loan

or

(b) December 31, 2020

Borrowers may still choose to use the original eight-week covered loan period in the Payroll Protection Program or alternative payroll covered period provided in the Small Business Administration’s guidance related to loan forgiveness.

2) REDUCED % OF LOAN TO BE SPENT ON PAYROLL FOR FORGIVENESS

Initially, in order for a borrower to obtain loan forgiveness, businesses had to spend 75% of their loan amount on payroll costs, with 25% able to be spent on qualified non-payroll expenses.

The Forgiveness Act reduces the % that needs to be spent on payroll costs to 60% of PPP loan proceeds need to be spent on payroll costs in order for the loan to be forgiven. This leaves 40% which can be spent on qualified non-payroll expenses.

• This gives employers some welcome flexibility to use loan proceeds on rent, mortgage payments and other qualified non-payroll expenses.

3) EXPANDED EXEMPTIONS FROM LOAN FORGIVENESS REQUIREMENTS

A. The PPP provided that employers who had experienced a reduction in either employee headcount or employee salaries between February 15, 2020 and April 26, 2020 could receive forgiveness if it eliminated any reduction headcount and salary by June 30, 2020.

→ The PPP Flexibility Act extends this June 30 date to December 31, 2020.

B. The Flexibility Act also expands exemptions from the reduction to loan forgiveness corresponding to a reduction in the number of full-time equivalent (FTE) employees.

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• • • An employer who has experienced a reduction in FTE employees after February 15 will not see a reduction in loan forgiveness based on FTE count if it can document in good faith that it has been unable to:

1) Rehire individuals who were employed by the business on February 15, 2020 and also unable to hire similarly qualified employees for unfilled positions on or before December 31, 2020

or

2) Return to the same level of business activity at which it was operating before February 15, 2020 due to compliance with requirements or guidance from the U.S. Secretary of Health and Human Services, CDC or OSHA between March 1 and December 31 relating to standards for sanitation, social distancing, or any other worker or customer safety requirement related to COVID-19.

4) FIVE-YEAR REPAYMENT PERIOD FOR NEW LOANS

A. For PPP loans made on or after the June 5th effective date of the Flexibility Act, borrowers will have a period of at least five years to pay off the portion of any loan which is not forgiven.

B. For loans made before the Flexibility Act effective date of June 5, lenders and borrowers may, but are not required to, mutually agree to modify the terms of an existing loan to include a minimum five-year period for repayment of any unforgiven amounts.

5) EXTENSION OF LOAN DEFERRAL PERIOD

The Flexibility Act also expands the six-month loan deferral period created by the PPP. Repayment of a PPP loan is now deferred until after the SBA has determined the borrower’s loan forgiveness amount and remitted that amount to the lender.

FOR MORE INFORMATION ABOUT RE-OPENING CHALLENGES:

• Email Trinity at info@TrinityHR.net
• Visit our website at www.TrinityHR.net
• Call us at 856.905.1762 or Toll Free at 877.228.6810

YOU HAVE HR CHALLENGES…TRINITY HAS SOLUTIONS!

AMOUNT OF WAGE REPLACEMENT

If an employee needs leave for the employee’s own illness, the need to self-quarantine, or the need to get a medical diagnosis, the employer must pay the employee’s full regular wage for the 10 days of paid sick leave.

If the employee needs leave to care for someone else, the employer must pay the employee two-thirds of the employee’s wages for the 10 days of paid sick leave.

For the 10 weeks of emergency FMLA leave, the employer must pay two-thirds of the employee’s regular wage.

However, regardless of the employee’s salary, the law limits the amount of payments the employer must make, so that such payments will be equal to the tax credit the employer will receive in return.

For emergency paid sick leave payments, that means an employee may receive a maximum of $511 per day and $5,110 in the aggregate if the employee uses the sick time because of their own needs. The employee may receive up to $200 per day and $2,000 in the aggregate if the employee uses the 10 sick days to care for someone else. The employee may use other paid leave available under the employer’s program to increase the payments received.

For emergency FMLA leave payments, the employee may receive a maximum of $200 per day and $10,000 in the aggregate.

Thus, the amount of wages that employers must pay for either the new mandated emergency paid sick leave or emergency FMLA leave will never exceed the tax credit that the employer will be permitted to apply against certain taxes. (See description of the tax credit below.)

PAID LEAVE USES

The emergency paid sick leave may be used if an employee cannot work (or telework) if the employee:

1. Is subject to a federal, state, or local quarantine or isolation order related to COVID-19.
2. Has been advised by a healthcare provider to self-quarantine based on a belief that the employee (1) has COVID-19, (2) may have COVID-19, or (3) is particularly vulnerable to COVID-19.
3. Is seeking a medical diagnosis because the employee is experiencing the symptoms of COVID-19.
4. Is caring for an individual who is subject to a federal, state, or local quarantine or isolation order related to COVID-19, or has been advised by a healthcare provider to self-quarantine based on a belief that the individual (1) has COVID-19, (2) may have COVID-19, or (3) is particularly vulnerable to COVID-19.
5. Needs to care for a child if the child’s school or child care location has been closed, or if the child’s care provider is unavailable due to precautions related to COVID-19. This includes an adult child who has a mental or physical disability and is incapable of self-care because of that disability.

For purposes of the emergency FMLA leave, the only qualifying reason for that leave is if the employee is unable to work or telework because he or she must care for a child if, due to a declared public health emergency related to COVID-19, (1) the child’s school or place of care has been closed, or (2) the child’s care provider is unavailable due to reasons related to COVID-19.

If the closure of the school or place of care or the unavailability of the child’s care provider is foreseeable, the employee must provide the employer with notice of leave as soon as practicable.

NOTICE POSTING

An employer must post a notice for employees about the requirements of the law. The DOL has provided model posters for federal and nonfederal employees. The DOL has posted FAQs about the notice requirement and has expanded on the notice requirements in its rule.

The employer may not require that the employee find or search for a replacement to cover the hours the employee will be on sick leave.

TAX CREDIT

The FFCRA authorizes a tax credit for qualified sick leave wages and qualified family medical leave wages. The tax credits are equal to the maximum amounts that the employers must pay to employees under the law.

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The IRS has provided FAQs on the tax credit provision that include the following information:

• Employers are entitled to a credit for health insurance costs required to maintain insurance for employees during their leave periods.
• Employers may retain (i.e., not send to the IRS) taxes they would have paid for both the employee and the employer share (for all employees) of Social Security and Medicare taxes, as well as amounts that would have been withheld for employees’ federal income taxes.
• If the amount the employer retains is not sufficient to cover the costs of the qualified leave, the IRS will allow employers to seek an expedited advance from the IRS.
• Tax-exempt employers with fewer than 500 employees can use the credit to offset their payroll tax liability.

MULTIEMPLOYER COLLECTIVE BARGAINING AGREEMENTS

For employers that participate in multiemployer collective bargaining agreements (CBAs), the employer can fulfill the law’s requirements by making contributions to the multiemployer fund or plan based on the hours of paid short-term and long-term leave each of its employees is entitled to under the law. But the fund must allow employees to secure pay from the fund or plan for the paid leave the law requires.

NON-DISCRIMINATION AND ANTI-RETALIATION

The law prohibits an employer from discriminating against an employee for using emergency paid sick leave or emergency FMLA leave, filing a complaint, or testifying in an action under the law. The FMLA’s existing prohibition against retaliation applies with regard to employees who take the emergency FMLA leave.

ENFORCEMENT

An employer that fails to provide the required leave or engages in discrimination, including retaliation, faces enforcement actions under the FLSA. An enforcement action can be brought by a single employee or as a collective action, or by the US Secretary of Labor. Penalties would include payment of the unpaid wages plus an equal amount as liquidated damages, equitable relief (such as reinstatement), injunctive relief, and even criminal prosecution for willful violations. Attorney fees and costs can also be awarded.

An employer who fails to provide the emergency FMLA leave faces the enforcement provisions of the FMLA.

The DOL will hold off on strict enforcement, however, for 30 days, to provide employers time to comply. The DOL will not enforce violations during this period so long as employers have acted reasonably and in good faith to comply. There is no similar restriction on actions brought by employees.

NON-PREEMPTION

Nothing in the Families First Coronavirus Act diminishes the rights that employees have under any of the following:

• Federal, state, or local laws
• A collective bargaining agreement
• An employer’s existing policy

FOR MORE INFORMATION, INCLUDING HOW TRINITY’S TEAM OF CONSULTANTS MAY BE ABLE TO HELP YOU WITH THIS OR OTHER PEOPLE-RELATED MATTERS:

• Email Trinity at info@TrinityHR.net
• Visit our website at www.TrinityHR.net
• Call us at 856.905.1762 or Toll Free at 877.228.6810

YOU HAVE HR QUESTIONS…TRINITY HAS ANSWERS!

The Families First Coronavirus Response Act (FFCRA) requires all private (i.e., non-government) employers with fewer than 500 employees to provide emergency paid sick leave and emergency paid FMLA leave to employees who need leave due to the COVID-19 public health emergency. Employers (other than federal and state employers) will receive a tax credit equal to 100% of the money they spend on the paid leave mandated under the law.

• The law is in effect from April 1, 2020 until December 31, 2020.
  • There are also some state &/or local laws that create employer obligations for paid sick time.
• Employers with 500 or more employees are not covered under the FFCRA.
  • Employers with 500 or more employers may very well at some point have a paid leave mandate as a result of additional actions by Congress.

RULES FOR HOW TO COUNT EMPLOYEES

The US Department of Labor (DOL) has issued a rule addressing this issue.

1. Only US-based employees count toward the 500-employee threshold, including employees in US territories and possessions. Employers may count employees on leave, jointly employed employees, and day laborers supplied by a temporary agency, but not independent contractors.
2. If a corporation has an ownership interest in another corporation, the two corporations are separate for purposes of counting toward the 500-employee threshold unless they are joint employers under the FLSA.

THE MANDATE

The FFCRA includes the requirement to provide 10 days of emergency paid sick leave in a new freestanding law that incorporates several provisions of the Fair Labor Standards Act (FLSA). The FFCRA includes the requirement to provide emergency Family and Medical Leave Act (FMLA) leave for 12 weeks (of which 10 weeks must be paid) as an amendment to the existing FMLA.

ELIGIBLE EMPLOYEES

1. Full-time and part-time employees are eligible for the short-term paid sick leave (emergency paid sick leave), regardless of when an employee started working for the employer.
2. Full-time and part-time employees are eligible for the long-term paid leave (emergency FMLA leave). However, to be eligible, the employee must have been employed for at least 30 days. Employees who were laid off on or after March 1, 2020, but were subsequently rehired are also eligible for emergency FMLA leave, so long as the employee worked for 30 of the last 60 days before the layoff.

• • An employer of healthcare providers or emergency responders has the option of excluding an employee who is a healthcare provider or emergency responder from the emergency paid sick leave and/or the emergency FMLA leave.
  • The Secretary of Labor has issued a rule defining “healthcare provider” for this provision of the law as anyone employed by a wide range of healthcare institutions and businesses and anyone employed by an entity that contracts with such institutions.

EXEMPTION FOR SMALL EMPLOYERS FOR ONE TYPE OF LEAVE
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Here are the exemptions:

1. The FFCRA provided the Secretary of Labor authority to exempt businesses with fewer than 50 employees from providing leave if an employee needed to care for a child if a school or place of care was closed, or if the child’s care provider was unavailable for a reason related to COVID-19.
2. The DOL’s rule permits small employers (including nonprofit organizations) to self-certify for the exemption, based on several criteria relating to the financial viability of the business or organization.

NUMBER OF HOURS OF PAID LEAVE REQUIRED

Short-Term Leave:

1. Full-time employees must be provided with 80 hours (10 days) of short-term sick leave.
2. Part-time workers are entitled to the number of hours they work on average over a two-week period.

• The paid sick time does not carry over to the following year.
• Employers are also not required to reimburse employees for paid sick time not used by the employee when the employee leaves the job.

Long-Term Leave:

Employees must be provided with 12 weeks of job-protected leave.

• • The first two weeks (10 days) of such leave can be unpaid, while the following 10 weeks must be paid.
  • For the first 10 days, the employee may use the 10 days of paid sick leave provided by the law or use any other paid leave otherwise available from the employer.

FOR MORE INFORMATION, INCLUDING HOW TRINITY’S TEAM OF CONSULTANTS MAY BE ABLE TO HELP YOU WITH THIS OR OTHER PEOPLE-RELATED MATTERS:

• Email Trinity at info@TrinityHR.net
• Visit our website at www.TrinityHR.net
• Call us at 856.905.1762 or Toll Free at 877.228.6810

YOU HAVE HR CHALLENGES…TRINITY HAS SOLUTIONS!

DISCLAIMER

This document has been prepared by Trinity HR Consulting, Inc. (“Trinity”) solely for use as a general source of information.  As such, it is not intended nor should it be used to take the place of advice from legal counsel or of healthcare/medical professionals.  Trinity strongly urges seeking legal and/or healthcare/medical advice on this subject matter prior to taking any related actions or making any related decisions.

With the rapid global spread of coronavirus (officially called COVID-19), employers have or are in the process of taking measures to protect the health and well-being of their employees. Regardless of company size, employers need to be:

1) Aware of what their legal obligations (including at both the federal and state level) may be.

• For example, many companies have already put business travel bans into place.

2) Considering what actions to take

In Part 1, the focus will be on the legal obligations of employers.  Look for Part 2 next week in which Trinity discusses actions for you to consider.

LEGAL OBLIGATIONS

In addition to non-discrimination-related laws (including the Americans with Disabilities Act), five important legal obligations are identified below:

1) Occupational Safety and Health Act

This Act obligates employers to provide a workplace free of known health and safety
hazards. The three most prominent employer obligations under OSHA are:

• • General Duty Clause: Each employer shall furnish to each of its employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees.
  • Personal Protective Equipment (PPE) standards require using gloves, eye and face protection, and respiratory protection. When respirators are necessary to protect workers, employers must implement a comprehensive respiratory protection program.
  • Bloodborne Pathogens standard applies to occupational exposure to human blood and other potentially infectious materials that typically do not include respiratory secretions that may transmit COVID-19. However, the provisions of the standard offer a framework that may help control some sources of the virus.

• As part of this, employees have the right to:
  • File a confidential complaint with the Occupational Safety & Health Administration
  • Protection against employer retaliation (fire, demote, transfer or otherwise retaliate against workers) for using their rights under the law

2) Worker Compensation LAWS & TEMPORARY DISABILITY INSURANCE (TDI)
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Each of these laws varies by state. Both address injury or illness—it is merely a question of whether it is work-related (worker’s compensation) or not work-related (temporary disability). If employees become infected, they may file a worker compensation claim alleging they were exposed as a result of their work duties or a TDI claim.

• An employer’s failure to comply with OSHA requirements & standards may tip the scale to having your worker’s compensation insurance carrier approve an employee’s claim. Even if that is denied, a coronavirus illness that results in employees not being able to work will be covered by TDI.

3) Family and Medical Leave Act (FMLA): 50 or more employees

• The FMLA provides eligible employees with twelve-weeks of job and health insurance protected leave for specific qualifying reasons.
• The two most relevant qualifying events are: (1) employee’s own serious health condition; and (2) to provide care for a family member with a serious health condition.
• An employee may seek leave due to being fearful of coming to work. It is highly unlikely a request being on that would qualify.

4) Fair Labor Standards Act (FLSA)

One of the most important questions for employers is, “If due to the coronavirus, we shut down do we have to pay my employees?”

• The short answer is it depends on the FLSA status of the employee as exempt or nonexempt. Below is the general answer (“general” because there are certain exceptions with the Act):
  • Exempt employees must be paid an entire week’s salary if they perform any work during the workweek
  • Nonexempt employees are required to be paid only for the hours actually worked.
• Unfortunately, many employers have not used the government formal process to make this determination. Consequently, they tend to classify more employees as exempt than truly are.

5) Health Insurance Portability Accountability Act (HIPAA)

If an employer learns of the employee’s medical information, condition, diagnosis etc. through the health plan, act (unless advised otherwise) that such inform is protected under HIPAA.

In addition to an employer being prohibited from sharing an employee has the coronavirus, HIPAA generally prohibits an employer from discriminating against an employee who has a particular medical condition.

• There are also confidentiality provisions within FMLA & the American with Disabilities Act, as well as state worker’s compensation laws.
• Given the “need to know” aspects, the most prudent approach is to inform an employee’s immediate supervisor only that her/his employee is not able to work & is on a leave of absence.

FOR MORE INFORMATION, INCLUDING HOW TRINITY’S TEAM OF CONSULTANTS MAY BE ABLE TO HELP YOU WITH THIS OR OTHER PEOPLE-RELATED MATTERS:

• Email Trinity at info@TrintyHR.net
• Visit our website at www.TrinityHR.net
• Call us at 905.1762 or Toll Free at 877.228.6810

You have HR questions…Trinity has answers!