New York Passes State-Wide Paid Sick Leave Law

New York State is among the ever-growing list of states and localities mandating that employers provide paid sick leave to employees.

Passed in April 2020, the New York State Labor Law was amended to require all employers, regardless of size, to provide annual sick leave to their employees.  The statewide sick leave law applies to all employers with employees in the state.  The law goes into effect on September 30, 2020 when employers must allow employees to start accruing paid sick leave, but employers are not obligated to allow use of sick leave until January 1, 2021.

The law requires:

  • Employers with 4 or fewer employees: must provide 1 hour of unpaid sick leave for every 30 hours worked, up to 40 hours of unpaid sick leave annually. However, if such an employer has net income of more than $1 million in the previous year, the leave must be paid.
  • Employers with between 5 and 99 employees: must provide 1 hour of paid sick leave for every 30 hours worked, up to 40 hours of paid sick leave annually.
  • Employers with 100 or more employees: must provide 1 hour of paid sick leave for every 30 hours worked, up to 56 hours of paid sick leave annually.

To determine an employer’s size under the law, a calendar year is defined as the 12-month period from January 1 to December 31. For the purpose of using and accruing paid or unpaid leave under the law, a calendar year means the 12-month period from January 1 through December 31, or a regular and consecutive 12-month period, as determined by an employer.

For purposes of the law, sick leave is defined broadly to include not only traditional sick leave usage, but also for reasons known as safe leave. The leave provided by the law is available for the following purposes:

  • For a mental or physical illness, injury or health condition of an employee or an employee’s family member, regardless of whether that condition has been diagnosed or requires medical care at the time the employee requests leave;
  • For the diagnosis, care, or treatment of a mental or physical illness, injury or health condition of, or need for medical diagnosis of, or preventative care for, an employee or an employee’s family member; and
  • For certain absences from work due to domestic violence, a family offense, sexual offense, stalking, or human trafficking, of an employee or an employee’s family member.

The law defines family member as an employee’s child, spouse, domestic partner, parent, sibling, grandchild or grandparent, and the child or parent of an employee’s spouse or domestic partner. Parent is defined as a biological, foster, step- or adoptive parent, or a legal guardian of an employee, or a person who stood in loco parentis when the employee was a minor child. Child is defined as biological, adopted or foster child, a legal ward, or a child of an employee standing in loco parentis.

Employers may set a minimum increment for use of sick leave, which cannot exceed four hours. Unused sick leave must be carried over to the next calendar year, but employers may limit the amount of sick leave that may be used in a calendar year to 40 hours (employers with fewer than 100 employees) and 56 hours (employers with 100 or more employees). Additionally, employers are not required to pay an employee for unused sick leave upon their separation of employment.

Employers who intend to rely on their existing sick leave or paid time off policy should review their current policy to ensure it meets or exceeds all of the requirements of the new law.

Currently, there are only two jurisdictions in New York that have passed sick leave laws: New York City (with the New York City Earned Safe and Sick Time Act), and Westchester County (with the Westchester County Earned Sick Leave Law and Safe Time Leave Law). This new statewide law states that it does not preempt or diminish existing city- or county-level paid sick leave laws.  As such, employers in New York City and Westchester must continue to provide employees with leave that meets or exceeds the requirements of both the statewide and local laws.

The New York Department of Labor is expected to issue additional regulations and guidance prior to the effective date of the law.



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Unconscious Bias In The Workplace

The word “bias” has come up so much in the news today.  Add to that the word “unconscious” and one can see how we can have a problem with communication in our every day lives and in the workplace.

So what do we do about this, especially in the world environment we all live in today.  How do we identify and mitigate unconscious bias, especially in the workplace?

It has been studied and researched that 80% to 90% of the mind works unconsciously, meaning that the brains of even the most unbiased people still exhibit this tendency.  The effects of this most definitely are felt in the workplace despite all the efforts in training and legislation in the past years geared to educate employees on the value of respect in the workplace in areas of age, race, gender, sexual orientation, religion, socio-economic status and physical disabilities.  This bias, unfortunately, continues to impact hiring and employment promotions.

While there is no one foolproof way to identify unconscious bias, employers can help mitigate its effects by:

  1. Helping managers to focus on inclusivity and diversity in the conscious mind, helping to sharpen their ability to identify instances of intended and unintended bias in the workplace.
  2. Encouraging peer-to-peer recognition by publicly acknowledging and thanking fellow employees for their contributions in a public forum, i.e., conference room meetings, formal thank you notes, company publications, etc. This helps to foster a sense of connection, shared purpose and belonging among employees.
  3. Holding company-wide trainings. PMP has just developed a wonderful new Webinar series that is being offered to our clients on Unconscious Bias in the Workplace.
  4. Consciously assign diverse groups within your organization to address stereotype situations to view a situation through a different lens.
  5. Assigning diverse groups to work together to help achieve a common goal.
  6. Not being afraid to solicit honest feedback about the company’s efforts to foster a diverse and inclusive environment.

Once unconscious bias is recognized or brought to the attention of management in the workplace, communication and feedback are key to quickly address behaviors and remedy the situation.

A workplace free from unconscious bias is one where every employee, regardless of gender, nationality, race or sexual orientation is empowered to have a voice and feel respected.  This encourages a strong sense of belonging and employees will begin to feel comfortable bringing their true self to work.  Strategies and tools combined with HR programs will help create a positive work culture across teams and unlock positivity in the workplace. It will encourage celebrating employees for who they are and what they do.

Immediate attention must be given to any negative bias situation that arises in a company.  Quick response to a complaint and a rapid solution is paramount. It sends out the message to the entire company that unprofessional and biased behaviors will not be tolerated.  Issues must be addressed quickly or they will be left to fester and grow.  Managers must be trained to handle these situations in a rapid and professional manner.

Ultimately, the onus is on the business leader and manager to create a top-down cultural shift that encourages a broader awareness of unconscious bias across an organization.

Focusing on all categories across the board and the ability of these employees to do their job by making an effort to include everyone whether it be a person with a disability, a woman who has not yet held a certain position within your company or a minority who might have been left behind, will help to develop a sense of camaraderie and recognition among employees and make the workplace a more inclusive environment where all employees can thrive and grow.

There is no better way to develop a positive culture.  A positive culture needs to grow.  It does not happen overnight.  A successful, positive workforce always translates to a successful positive business.



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U.S. Department of Labor Issues New FMLA Forms and Notices

On July 17, 2020, the U.S. Department of Labor (DOL) issued new model notices and forms to be used by employers in the administration of the FMLA. The DOL anticipates these revised forms will increase compliance with the FMLA and make life easier, both for the health care providers who fill out the forms and for the employers who make decisions based on the information.  The changes will hopefully make it faster and easier to determine if the reason for leave is a serious health condition covered by the FMLA and reduce the need for employers to go through the time-consuming process of seeking additional, follow-up information from health care providers.

Among other things, the revised forms include fewer questions that require a written response.  Instead, such questions are replaced with statements that require the health care provider simply to check a box if the statement applies.  In the previous forms, health care providers provided narrative responses that sometimes failed to answer clearly the underlying question of whether the health care provider thought the employee had a serious medical condition.  By narrowing the scope of the information provided by health care providers, the DOL hopes the new forms will eliminate the need for this speculation and clarification.

The new forms also request additional valuable information through questions that actually encourage health care providers to explain not just the current treatment but potential future treatment as well (the current forms only focus on what has already been done to treat the patient).

These forms as well as the previous forms, are optional for employers to use as the FMLA does not require the use of any specific form or format.

Employers can use the following optional forms to provide the notices required under the FMLA.

  • General Notice, the FMLA poster – satisfies the requirement that every covered employer display or post an informative general notice about the FMLA. This notice can also be used by employers with eligible employees to satisfy their obligation also to provide FMLA general notice to employees in written leave guidance (e.g., handbook) or individually upon hire.
  • Eligibility Notice, form WH-381 – informs the employee of his or her eligibility for FMLA leave or at least one reason why the employee is not eligible.
  • Rights and Responsibilities Notice, form WH-381 (combined with the Eligibility Notice) – informs the employee of the specific expectations and obligations associated with the FMLA leave request and the consequences of failure to meet those obligations.
  • Designation Notice, form WH-382 – informs the employee whether the FMLA leave request is approved; also informs the employee of the amount of leave that is designated and counted against the employee’s FMLA entitlement. An employer may also use this form to inform the employee that the certification is incomplete or insufficient and additional information is needed.

There are five DOL optional-use FMLA certification forms.

Certification of Healthcare Provider for a Serious Health Condition

  • Employee’s serious health condition, form WH-380-E – use when a leave request is due to the medical condition of the employee.
  • Family member’s serious health condition, form WH-380-F – use when a leave request is due to the medical condition of the employee’s family member.

Certification of Military Family Leave

  • Qualifying Exigency, form WH-384 – use when the leave request arises out of the foreign deployment of the employee’s spouse, son, daughter, or parent.
  • Military Caregiver Leave of a Current Servicemember, form WH-385 – use when requesting leave to care for a family member who is a current service member with a serious injury or illness.
  • Military Caregiver Leave of a Veteran, form WH-385-V – use when requesting leave to care for a family member who is a covered veteran with a serious injury or illness.

All of the above forms can be found at https://www.dol.gov/agencies/whd/fmla/forms.

If you have any questions about the above please feel free to reach out to PMP for assistance.



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Managing Unprofessional Employee Behavior On Social Media

Social media has become ingrained in mostly everyone’s daily life.  What many people do not understand is that when they post on Facebook, send a Tweet, or comment on a photograph on Instagram, their online actions and persona can lead back to their employer and place of work.  When does this become a problem for employers?  When an employee calls attention to themselves and their employer through either inappropriate, racist, rude, or sexually abusive posts or comments online.

An employee’s unprofessional behavior online has the potential to wreak havoc and potentially go “viral,” leading to unwanted and possibly damaging press about your company.  Many employers question whether they can police an employee’s online activities.  The short answer is, “Yes.  But…”  Below are some of the common problems arising from an employee’s unprofessional online behavior and some tips to help employers manage their employee’s behavior on social media.

 

BADMOUTHING

It’s one thing for a disgruntled customer to post a negative review about your company online.  But once an employee posts something negative about your company on social media, that negative comment is out there for the world to see.  Why is this worse than the negative review left by an unhappy customer?  It is worse because a negative post from an employee certainly carries more weight than the disgruntled customer’s review since the employee has inside knowledge and insight into your company’s services, products and workplace culture.

When an employee badmouths your company, first you need to consider whether the negative comments made are protected by federal law, i.e., the National Labor Relations Act (NLRA), and other state laws that protect employees from retaliation for complaining about working conditions.  Employees generally have the right to post information about their working conditions, wages and hours online.  Section 7 of the NLRA protects employees’ activities if those activities are undertaken for the mutual protection or aid of other employees.  This means that if an employee is engaging in a “group chat” on social media or posting information about topics such as working conditions, wages, workplace safety, or other employment terms and conditions, that online behavior is protected and employers may not discipline employees for that activity.  Employers should also note that in most cases under Section 7 of the NLRA, employees have a legitimate and reasonable expectation of “limited” privacy.  This means that if the employees take steps to protect their social media accounts from public viewing, it is likely that a court would uphold that privacy expectation.  Since posts criticizing employers are a gray area legally speaking, it is important for employers to determine whether the employee’s posted content is protected by federal or state law before taking any action to discipline or fire the employee.

 

POSTING A RANT ON SOCIAL MEDIA

Since profiles on social media often contain an individual’s personal information, including their place of work, a person’s ‘rant’ on social media can easily be linked back to their employer and cause the employer to make a disciplinary decision on the spot.

Employers should note that Section 7 of the NLRA does not protect employees who have posted negative comments reflective of their employer’s business or brand, or towards their employer’s customers.  Further, posts that contain threats of violence, hate speech, harassment, or violate your company’s confidentiality policy are not protected speech.

Depending on the content of an employee’s post, employers may decide to require the employee to participate in sensitivity training, or the employer may choose to fire the employee.

 

DISPUTES WITH COWORKERS

No workplace is perfect and there are always interpersonal disputes among employees.  However, when a workplace dispute leaves the workplace and continues onto social media, a dispute can easily escalate into an all-out public war.  Not only does the continued feuding on social media create an unpleasant and hostile work environment, it also gives the public access to your company’s dirty laundry.  Further, it can lead to online bullying and harassment which may require employers to get involved in the dispute.

Often, employers can remedy these situations with mediation among the disputing parties.  However, it is recommended that employers stop the issues before they start.  How can employers do this?  By setting forth a policy prohibiting employees from using social media or online posts to harass, threaten or bully colleagues in addition to prohibiting that same conduct in the workplace.  Additionally, the policy should instruct employees on how to use social media ethically and how to respond to attacks on social media by less ethical users (i.e., don’t engage).

 

SOLUTIONS TO UNPROFESSIONAL ONLINE BEHAVIOR OF EMPLOYEES

Although we don’t have one simple fix for employees’ unprofessional online conduct, an employer’s first solution should be to create and distribute a comprehensive company policy on employee behavior on social media.  This policy must clearly outline not only your company’s rules prohibiting online harassment and bullying, etc., but the policy should also set forth your company’s expectations of responsible social media usage while they are employed by your company.  Be sure to include straight-forward examples of unacceptable online conduct and include the potential consequences that may arise out of an employee’s unprofessional behavior on social media.

Another solution for employers is to implement routine online searches of your company name to ensure your company’s name, brand and online reputation are not improperly tarnished by employees.  Routine searches will allow employers to remain proactive and possibly get ahead of a comment or post that has the potential to go “viral” and negatively impact your company.  However, there is one caveat to this solution.  Employers should not target specific employees’ posts or “friend” employees on social media.  “Friending” employees on social media is risky because it can lead to learning a lot of information about an employee that you’d probably rather not have access to and can blur the line between the employer-employee relationship.  For example, after friending an employee you learn about that employee’s political views, social affiliations, medical issues, or religious preferences from their posts that you may have not previously known about.  After learning that information from social media, at a later point you then give that an employee an unfavorable performance review or decide to pass on promoting that employee, an employer may run the risk of a potential discrimination or harassment claim.  Similarly, you may become aware of off-duty conduct that affects the workplace and find you must now investigate that employee’s off-duty conduct.

Employers should also note that if an employer chooses to discipline an employee based on information learned from that employee’s social media, the ability to discipline the employee will depend on how you discovered that information.  For example, if you learned of the employee’s post on social media because you had legitimate access to the employee’s post, i.e., the employee’s social media site is open for public viewing, you are “friends” with the employee on Facebook, or another employee who has legitimate access to the employee’s social media site brings it to your attention, you may then discipline the employee.  If the employee has an expectation of privacy with respect to your viewing of their social media site (because their social media profile is set to private and you are not friends with that employee on that social media platform), or you ask other employees to check that employee’s social media site, then you will not be able to use that information to discipline the employee.

Unfortunately for employers, social media continues to evolve; and as it does, new and unique unprofessional situations will come about and need to be handled.  While it is a continuous process for employers to amend their company policies, it pays for employers to be proactive when it comes to informing employees about unprofessional conduct on social media and teaching employees how to avoid it.  If you have any questions about implementing a policy on social media, please feel free to contact one of our PMP HR Directors.



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EEOC Issues Supplemental Guidance on COVID-19 Warning Employers Against Violations of Federal Discrimination Laws

On June 17, 2020, the Equal Employment Opportunity Commission (the “EEOC”) issued supplemental guidance warning employers about potential violations of federal discrimination laws including the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (the ADA”), and Title VII.  Among other things, the EEOC’s guidance discusses how potential issues may arise in the workplace as a result of COVID-19 and interact with various federal discrimination laws.  Below we discuss what employers need to know about this agency’s latest guidance on dealing with COVID-19 in the workplace.

Age-Related Discriminatory Practices

While the EEOC’s guidance does acknowledge that the Centers for Disease Control (the “CDC”) and other public health authorities have identified that people age 65 and over are at a higher risk to contract a severe case of COVID-19 if the virus is contracted, employers are still subject to the ADEA.  The ADEA bans employers from discriminating against employees who are 40 and older and employers are prohibited from involuntarily excluding an employee from the workplace based on their age.  Despite the fact that employers may be trying to keep older employees out of the office to protect them against contracting COVID-19, employers may still violate the ADEA by treating older workers less favorably based on age.

The EEOC’s guidance also discusses the concept of providing older workers with flexibility when returning to the workplace.  Unlike the ADA, the ADEA does not provide older workers with a right to a reasonable accommodation due to age.  However, employers are permitted under federal law to provide workers age 65 and older with flexibility even if that does result in treating workers aged 40 to 64 from being treated less favorable based on age in comparison.  Employers should ensure that when providing this that they consistently provide that flexibility to all employees age 65 and older.

The guidance further addresses that employees age 65 and older may also have medical conditions requiring protection under the ADA.  Employers must keep that in mind if an employee requests a reasonable accommodation for their disability or medical condition as opposed to their age.  Employers must treat the employee as any other employee requesting a reasonable accommodation.

Pandemic-Related Harassment or Discrimination of Asian Employees

Employers should instruct their managers to be alert to any harassing remarks, including those that are related to COVID-19, aimed at workers who may be perceived to be of an Asian national origin.  While harassment can take place in the workplace, it can also occur while employees are working remotely.  Employers should take the same actions as if the employees were working in the workplace and should consider reminding employees of their company’s process for reporting an incident and prohibitions and policies against Title VII harassment.

Guidelines on Employees Returning to Work

Under the ADA and the Rehabilitation Act, employers should inform all employees of the company’s process to request reasonable accommodations that an employee may need upon returning to the workplace.  Employers should direct the employee designated to handle such inquiries to be prepared to address all inquiries consistently with the various federal employment discrimination laws.

A common request an employee may ask for is an exemption from a face covering requirement due to a disability.  Employers must respond to this request as it would for any other request for an accommodation under the ADA or Rehabilitation Act.  Employers are permitted to ask for additional information, including documentation, if the employee’s disability is not already known or obvious.  Employers should also note that if the request is based on an employee’s religious accommodation, the employer must determine if the accommodation falls under Title VII.  Employers must handle the request for an accommodation in the same manner as any other accommodation request falling under Title VII.

Protections Regarding Pregnant Employees

The EEOC also warns employers not to exclude employees from the workplace because an employee is pregnant.  Sex discrimination is prohibited under Title VII, which includes discrimination based on pregnancy.

Employers should note that pregnant employees do have the right to request reasonable accommodations under Title VII or the ADA.  Employers must consider a pregnant employee’s request for reasonable accommodations in the same manner as they would treat any other request for a reasonable accommodation.  Title VII requires that pregnant women are to be treated in the same way as others similar in their ability or inability to work, thereby entitling them to certain job modifications such as teleworking, which is an option available to other employees.

Accommodations for Employees Who Are Caregivers

Employers providing employees with opportunities to work remotely, modify their work schedule, or any other benefit because an employee has school-aged children who require care due to school closures or distance learning as a result of the COVID-19 pandemic, must ensure they are not treating employees differently based on sex or any other EEO-protected characteristics.  For instance, an employer may violate Title VII by denying a male employee’s request to work remotely in order to care for his children simply because the employee is male.

Accommodations for Employees with At-Risk Family Members

While the ADA does not cover accommodations for employees without a disability based on the disability-related needs of a family member, employers are encouraged to provide flexibilities for those employees.  Employers must note that when providing such flexibility, they must be aware of whether they are engaging in disparate treatment against other employees.



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How to Handle Remote Employees Once Your Business Re-Opens

New York businesses are finally re-opening and with this “new normal” comes many questionDO s for employers and their employees.    One question which has surfaced for many of PMP’s clients is, “do I have to allow employees who were working remotely to remain remote now that offices can return to on-site work?”  The simple answer to this question is no, just because employees were remote during the height of the pandemic does not mean you must allow those employees to remain remote. But, there are many situations under which you should or must allow employees to continue working remotely.

The first thing for employers to consider is that just because New York is re-opening does not mean your organization must go back to on-site work. Instead, think about whether remote work was successful for your organization or not.

Try to answer a few questions such as: Was the productivity level appropriate? Many employers found that productivity was actually higher while employees were working from home.  Ascertain whether  technology issues are minimal. Some organizations have learned from this situation that they need to be more agile and thus are adapting their computer system to allow for remote work on an on-going  basis.  Organizations should consider whether remote work is in line with their company culture. If you are unsure of the answer to this question, you may want to look at some of the research on this topic.  A survey from Owl Labs said that 24% of employees would take a pay cut to allow them to work from home and only 19% of employees surveyed said they would rather work on-site than remotely. Clearly the research shows employees, overall, prefer to work from home. Lastly, consider whether the flow of communications was effective and if managers were successful at supervising and coaching their team. Even if employers answer no to these last two questions,  these problems can be easily improved through clear guidelines outlined in a remote work policy in the employee handbook and by providing training for staff and managers on how to effectively work remotely.

In addition, organizations should be open to the positives of a remote workforce such as saving on office space, as one of our clients is doing by having employees remain 100% remote and not renewing their current lease for office space.  Still other organizations are shrinking their office size due to an increase in remote workers, both of which can be a huge savings for a company.  Remote work is also a huge selling point for new hires. Millennials are currently the largest age group within the workforce and working remotely is a priority to them. Another positive to remote work during the pandemic is that it will help minimize the spread of Covid and promote the safety of your workers, thus protecting the company from litigation related to employees contracting Covid.

Employers can allow employees to work remotely part time or full time (remember for now that only 50% of offices full occupancy should be back in the office.) This may prompt the question- why return some employees when they all cannot return?  You may also decide certain positions are remote (such as outside sales) while others should now be on-site (such as the Office Manager).  Just remember that these decisions should be made with legal counsel and/ or HR professionals, and not run afoul of the EEOC.

There are instances when employers should not make employees return to on-site work during the pandemic. On May 7th the EEOC updated their guidance on an employer’s obligation for having interactive dialogue with employees to discuss reasonable accommodations under the Americans with Disability Act.  During the pandemic, the EEOC urges employers to review certain medical conditions at high risk as per the list from the CDC such as severe obesity, diabetes, and severe asthma. The employer need only provide an accommodation if the employee requests it.  Conversely, doing so without the employee requesting the accommodation may be discriminatory.  If the employee requests an accommodation, working from home may be an option.  Governor Cuomo has suggested that employers should allow workers over 65 years old to work from home, during the pandemic, if they request it under what he calls, “Matilda’s law”, which he named after his mother.  Even younger workers with medically diagnosed anxiety may ask for an accommodation. Additional accommodations to teleworking may include:

  • Working in an office or in an area away from other employees
  • Working during off hours
  • Providing additional PPE
  • Eliminating non-essential duties that may put the employee in harms way.

Allowing employees to remain remote will be individual to the organization and each employee and all decisions should be made consistently, in a non-discriminatory manner and with the guidance of legal and /or HR professionals.



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Are you a Manager of People™?

Effective Managers of People™ impact employee engagement, which leads to a greater commitment to work, the work that will get accomplished ahead of schedule and more productively.  This impacts the bottom line.  Managers of People™ are accountable for the proactive conversation whether an employee works remotely or not.

At a minimum, managers should focus on 6 actions:

  1. Annually, make sure the job description is up to date, that it reflects the responsibilities and the essential functions of the job and fits within the organizational design of the department and company.
  2. Have a comprehensive conversation with each employee to review their job description and clearly outline the measurable work expectations and deliverables. The result is an agreement between the manager and employee, eliminating any assumptions which could affect job performance.
  3. Communicate weekly to check in on the employee’s progress. Every discussion with an employee should be ‘with’ the employee vs. ‘at’ the employee. The conversation ‘with’ the employee should be documented in the manager’s notes for follow-up. These notes can lead to recognition of a job well done or to address job performance issues. The conversation can focus on two questions:
  4. Tell me about what you achieved from last week.
  5. What is on your agenda to get accomplished this week?
  6. The work, expectations and deliverables should always be agreed upon between the manager and the employee. Without agreement, the work will not be accomplished or the wrong work will get done.
  7. Listen, really listen, to what is and is not being said and commit to taking action to help the employee get their job done. Being a better listener is a key competency of an effective Manager of People™.
  8. Document, document, document. It is always difficult to recall dates, topics and commitments made when there are no notes of the discussion.  Whether employees are working remotely or not, these notes go a long way in taking any kind of action with employees.  These actions can be a recognition of great work or documentation of poor job performance.

At the end of each day, Managers of People™ are encouraged to ask themselves:

  • Have I been the best manager of people every day?
  • Have I been the best manager of people to each employee every day?

If the answer is anything but a resounding ‘yes’, reflect on what you regret doing or not doing with each employee.  If you had to have conversations all over again, be clear about what you would have done differently. If you acknowledge your communication could have been more proactive and frequent and not always about the work, make a commitment to change.  Be a better Manager of People™, it is all up to you.

 

For more information on PMP’s Management Development Program, click here

 



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EEOC Delays EEO Data Collections Due To COVID-19 Public Health Emergency

In the May 8, 2020 Federal Register the U.S. Equal Employment Opportunity Commission (EEOC) announced it will delay the anticipated opening of the 2019 EEO-1 Component 1 data collection and the 2020 EEO-3 and EEO-5 data collections because of the Coronavirus Disease 2019 (COVID-19) public health emergency.

EEO-1, EEO-3 and EEO-5 filers should begin preparing to submit data in 2021. Pending approval from the Office of Management and Budget (OMB), the EEOC expects to begin collecting the 2019 and 2020 EEO-1 Component 1 data in March 2021 and will notify filers of the precise date the surveys will open as soon as it is available. The EEOC would expect to begin collecting the 2020 EEO-3 and the 2020 EEO-5 in January 2021 and will notify filers of the precise date the surveys will open as soon as it is available.

EEOC will be reaching out directly to EEO-1, 3, and 5 filers regarding the delayed opening of the surveys as well as updating their website.



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Looking To Hire New Employees? What Employers Need To Know About the Hiring Process and COVID-19

Employers are faced with new challenges and responsibilities during this COVID-19 pandemic.  While some businesses have placed their hiring efforts on the back burner, many companies are suddenly finding they need to hire new employees to meet their business’ needs during this pandemic.  Employers must now navigate the hiring process while maintaining the balance between an employer’s obligation to keep its workplace safe and a job applicant’s right to privacy.

How can companies appropriately and legally conduct interviews while adhering to social distancing guidelines?  Can employers require job applicants to be tested for COVID-19?  After extending a job offer, can an employer require the employee to work from home?  Or can an employer choose not to hire someone if the applicant refuses to work onsite?  Below we answer some common questions regarding how employers can implement legally-sound hiring practices and policies to keep your workplace and employees safe.

  • Should you conduct live or remote interviews? While some employers may prefer to bring into the workplace to interview the candidates in person, requiring a candidate to come in can pose certain safety issues in the workplace.  Although employers are turning to virtual video-conferencing channels such as Zoom, Google Hangouts or Skype to conduct business and practice social distancing, if it is imperative that the interview take place in person, employers must ensure all appropriate safety precautions are taken, such as wearing face masks, sitting at least six feet apart, etc.  In the alternative, if an employer chooses to conduct a virtual interview, the employer should take into account certain legal considerations that may arise.  For example, if the employer chooses to record the interview, certain state laws require the employer to obtain consent before the interview.  However, it’s a good rule of thumb to inform all applicants that the employer intends to record the interview.
  • Can employers screen job applicants for COVID-19? Employers are permitted to screen applicants in the same manner that it screens employees and visitors entering the workplace.
  • Can an employer choose not to hire an applicant who refuses to work onsite? This type of situation must be decided on a case-by-case basis and employers must take into account the particular circumstances of each scenario.  Employers should note that the ADA does not require employers to accommodate an applicant’s generalized anxiety relating to contraction of COVID-19, but should apply the same ADA “reasonable accommodation” analysis if the applicant disclosed their underlying health condition that may place them at a higher risk for contracting COVID-19.
  • Can employers require a newly hired employee to work from home? If it has become apparent to the employer that a new hire poses a legitimate health concern because they were exposed to COVID-19, the employer may require the newly hired employee to work from home, or may delay the employee’s start date.  Employers must remember that they are obligated to provide a safe working environment for all employees.  However, employers must consistently apply this policy to all employees in order to avoid potential employment litigation.   Employers should also develop a policy for the employer to maintain regular contact with applicants whose hire dates have been delayed to receive updates on the employee’s symptoms.
  • If an applicant is unable to start working due to COVID-19 symptoms and the employer cannot hold the position open, can the employer withdraw the job offer? Yes, employers are permitted to withdraw the job offer if an applicant cannot start working due to COVID-19 symptoms and the employer cannot hold the position open.  Under the current guide of the Centers for Disease Control, applicants with COVID-19 or symptoms of COVID-19 are not able to safely enter a work environment.  If an employer is going to withdraw a job offer, employers must apply this type of policy equally among all applicants, whether the applicant is unavailable to start working immediately as a result of COVID-19 symptoms, or another reason.

For more information and to discuss hiring employees in this new environment, please feel free to contact a PMP HR Director.



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New Model Federal COBRA Notices and Emergency Extensions to COBRA Deadlines

By Tony Haberman, President, The Haberman Group, tony@thehabermangroup.com

The Department of Labor (DOL) released updates and clarifications related to employee benefits, including updates to the current model COBRA notice and an extension of certain statutory deadlines intended to minimize the possibility of participants and beneficiaries losing benefits during the COVID-19 pandemic.

WHO HAS TO COMPLY?

New York employers that have employed at least 20 or more full and part time employees on more than 50% of their typical business days in the previous calendar year. As of today, employers with less than 20 full and part time employees are NOT affected by this new extension; however, that could change in the future.

NEW COBRA MODEL NOTICE

On May 1, 2020, the DOL released a revised model COBRA Notice. The primary update to the notice is a new section regarding Medicare eligibility versus COBRA continuation. It was revised to make sure there is a clearer understanding between Medicare and COBRA. The updated section is titled, “Can I enroll in Medicare instead of COBRA continuation after my group health plan coverage ends?”

COBRA DEADLINE EXTENSION NOTICES  

On April 29, 2020, the DOL and Internal Revenue Service (IRS) issued a joint notice that provides guidance for participants and employers on certain deadlines in relation to COBRA notifications, elections and payments. Prior to this announcement, an employer had to furnish the participant within 14 days of the loss of coverage with the COBRA letter; a qualified beneficiary had 60 days from the date of receipt of the COBRA notice to elect COBRA; and another 45 days after the date of the COBRA election to make the initial required COBRA premium payment. The participant’s coverage also could be terminated for failure to make a timely payment if not received within the 30-day grace period.

The Joint Notice not only extends the above statutory deadlines but also extends many other participant-related deadlines such as HIPAA special enrollments, claim appeals and external review filings by requiring plans to disregard the period from March 1, 2020, until 60 days after the announced end of the National Emergency (defined as the “Outbreak Period”).

COBRA ELECTION PERIOD EXTENSION  

Under the new guidance, once a participant receives their COBRA election notification, the applicable COBRA election deadline will be 60 days from the end of the Outbreak Period. Currently there is no end date to this National Emergency and therefore no end date can be provided. Of course, the participant does not have to wait until the end of the election period to elect COBRA and once COBRA is elected and the initial payment is made, the coverage will be retro reinstated to the termination date noted in the COBRA letter.

For example, this means if a qualifying beneficiary receives the election notice on or after March 1, 2020, the 60-day initial COBRA election period does not begin until the end of the Outbreak Period. The participant then has another 45 days after that to make the initial required COBRA premium payments.

COBRA PREMIUM PAYMENT EXTENSION

For individuals already on COBRA, they can pause their COBRA payments. With the new time-frame extensions, current COBRA participants have an additional 30 days from the end of the Outbreak Period to submit all retro-payments. During this timeframe, the employer and health insurance carrier cannot terminate the coverage or reject any claims for non-payment of premium.

For example, an individual previously elected COBRA and has been paying monthly COBRA premiums since March 1, 2020. That individual does not have to pay applicable monthly COBRA premiums for April, May, June, or July. Under the extension guidance, the Plan must allow the individual until 30 days after the end of the Outbreak Period to fully pay all prior months of COBRA premiums to maintain the COBRA coverage.

EMPLOYER COBRA NOTICE PERIOD EXTENSION   

The Joint Notice also provides employers extra time to furnish the COBRA election notice but the guidance is unclear about the actual extension. The suggestion is to provide the COBRA election as soon as administratively possible; since delay in furnishing the notice could create a financial hardship for the COBRA participant. Until further guidance is issued, it is recommended that employers and administrators continue to send the COBRA election notices based on existing law and rely on the extension only if necessary.

Many participants and employers will have questions with the above new guidelines and it is strongly recommended that employers consult with a COBRA administrator and/or an employee benefits advisor.



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