Guidelines on Furloughs and Layoffs

While reductions in our workforce may be a difficult process, with a well-defined structure, the situation may be easier for both the employer and the employee.  The following steps assist organizations to prepare for these decisions.

STEPS TO CONSIDER:

·  Determine the reason, need, and timing for the reduction as soon as possible: permanent situation (layoff) or a temporary situation (furlough).  If not all employees are effected, determine the need for freezing hiring, promotions, pay increases, etc.  This decision should be decided by a committee or team if possible.  Discuss alternatives through resource such as https://www.colorado.gov/pacific/cdle/employer-services

·  Determine different departments and the number of staff effected (all or partial).

·   Determine any contractual considerations or collective bargaining situations.

·  Determine objective criteria for furloughs/layoff selection:  seniority, performance, PT/FT, education/experience/knowledge/skillsets, volunteer for reductions, etc.  Avoid discrimination or disparate practices (age, race, religion, gender, pregnancy, disability, etc.)

· Determine if severance packages will be offered.  If offered, ensure compliance with all regulations, including the Older Workers Benefit Protection Act (OWBPA) and ERISA.

·         Be aware of specific regulations, such as the Worker Adjustment and Retraining Notification (WARN) Act for employers with 100 or more employees, or state specific requirements.

· Be aware of requirements for specific industries under the Colorado HELP regulations requiring paid leave and separation considerations.

·Determine if employees must return company property or not.  If so, how and when?

· Give your employees as much advanced notice as possible.

· Provide information regarding benefits, pension plans, COBRA and/or the Colorado Continuation of Coverage, including contact information and how long their benefits will remain in effect.

· Provide a letter to employees explaining the following (not an all-inclusive list):

• Specific details of situation
• Effective dates of reduction of hours, furlough or layoff
• Contact information on filing for unemployment insurance (https://www.colorado.gov/pacific/cdle/qualifying-benefits)
• State if you expect to reinstate the employee’s hours within 16 weeks
• If a permanent layoff, include information for the local workforce center (https://mcwfc.us/)
• Information on their final paycheck (all wages earned, vacation, PTO, etc.)
• Information regarding benefits, pension plans, COBRA and/or the Colorado Continuation of Coverage, including contact information and how long their benefits will remain in effect.

· Be aware of the potential for emotional responses and secure your workplace against possible workplace violence situations.  If you have an Employee Assistance Program, invite them to the worksite to assist those laid off, furloughed, or retained.

· Work with accounting/payroll professionals to determine any financial considerations.

·When an employee’s work ends due to no fault of their own, they must receive all wages due, including PTO/Vacation, within 24 hours.  Determine the payment requirements for commissions or bonuses.

· Develop a schedule for individual employee meetings.

· When re-hiring, be aware of requirements to offer positions to those laid off or furloughed.

Disclaimer:

Lighthouse HR Support (LHRS) provides practical human resource information and guidance based upon our knowledge and experience in the industry and with our clients. LHRS services are not intended to be a substitute for legal advice. LHRS services are designed to provide general information to human resources and/or business professionals regarding human resource concerns commonly encountered. Given the changing nature of federal, state and local legislation and the changing nature of court decisions, LHRS cannot and will not guarantee that the information is completely current or accurate.

LHRS services do not include or constitute legal, business, international, regulatory, insurance, tax or financial advice. Use of our services, whether by phone, email or in person shall indicate your acceptance of this knowledge.

This truly is a time in our country of unprecedented change. It seems the quicker we collect information regarding COVID-19 and the impacts on employers and the workplace, the quicker the information changes.

Families First Coronavirus Response Act

The Families First Coronavirus Response Act was signed into law on March 18, 2020.
In the coming days and weeks, federal regulatory agencies, including the Department of Labor (DOL) and Health and Human Services (HHS), will provide guidance on how to execute or implement the new requirements. In the meantime, employers and advisors must rely on a good faith interpretation of the act’s text.

Summary
Employees will be eligible for two weeks of sick leave (full pay for self, 2/3 pay for family care) and use of 12 weeks of Family and Medical Leave Act (FMLA) leave (10 days unpaid and then up to 10 weeks at 2/3 pay) for several circumstances related to COVID-19.

Effective Date of Law
• The FMLA and Paid Sick Leave sections discussed below will go into effect on April 2, 2020 and expire December 31, 2020.
• It appears there is no retroactive application.
Key Elements for Employers
• FMLA expansion
• Paid sick leave
• Payroll tax credit
• Group health plan benefit mandate

Emergency FMLA Expansion
• Covered Employers: Employers with fewer than 500 employees are covered.
• Covered Employees: Any employee who has been employed for at least 30 calendar days, though employers can choose to exclude employees who are health care providers or emergency responders.
• Covered Leave Purposes: To care for a child under 18 of an employee if the child’s school or place of care has been closed, or the childcare provider is unavailable, due to a public health emergency, defined as an emergency with respect to the coronavirus declared by a federal, state, or local authority.
• Duration: Up to 12 weeks of job-protected leave.
• Compensation:
o No pay for first 10 days of leave (employee can, but is not required, to use any other leave available to them, including the emergency sick leave discussed below). Employers may not require employees to use paid leave during this period.
o After 10 days, employers must pay two thirds of the employee’s regular rate of pay for the number of hours they would normally be scheduled to work, capped at $200/day and $10,000 total.
• Reinstatement to Position after Leave:
• The same reinstatement provisions apply as apply under the traditional FMLA. However, restoration to position does not apply to employers with fewer than 25 employees if certain conditions are met:
o The job no longer exists because of changes affecting employment caused by an economic downturn or other operating conditions that affect employment caused by a public health emergency, subject to the following conditions:
 The employer makes reasonable efforts to return the employee to an equivalent position, and
 The employer makes efforts to contact a displaced employee if anything comes up within a year of when they would have returned to work.

Note: Employers covered here but not by the rest of the FMLA (i.e. those with fewer than 50 employees) are not subject to civil action by employees (only action by the Secretary of Labor). The act reserves the right for the Secretary to exclude certain care providers and first responders from the list of “eligible employees” and exempt small businesses with fewer than 50 employees if business viability was jeopardized.

Emergency Paid Sick Leave
• Covered Employers: Employers with fewer than 500 employees.
• Covered Employees: All employees (no matter how long they have been employed). Employees who are health care providers or emergency responders may be excluded.
• Covered Leave Purposes:
1. When quarantined or isolated subject to federal, state, or local quarantine/isolation order;
2. When advised by a health care provider to self-quarantine (due to concerns related to COVID-19);
3. When experiencing symptoms of COVID-19 and seeking a medical diagnosis;
4. When caring for an individual doing #1 or #2 (2/3 pay);
5. When caring for a child whose school or place of care is closed due to COVID-19 (2/3 pay); or
6. When the employee is experiencing any other substantially similar condition (2/3 pay).
Duration of Leave:
• Full time employees are entitled to 80 hours of paid sick leave.
• Part time employees are entitled to sick leave equal to the amount of hours worked on average over a typical two-week period.

Rate of Pay:
• Sick leave must be paid at the employee’s regular rate of pay for leave used for the employee’s own illness, quarantine, or care.
• Sick leave must be paid at two-thirds of the employee’s regular rate if taken to care for a family member or to care for a child whose school has closed, or if the employee’s childcare provider is unavailable due to the coronavirus.
• Pay is capped at $511/day and $5,110 total for reasons 1, 2, and 3 described above.
• Pay is capped at $200/day and $2,000 total for reasons 4, 5, and 6 described above.
Interaction with Other Employer-Provided Paid Sick Leave and other Paid Leave:
• This act does not pre-empt existing state and local paid sick leave requirements.
• Employers cannot require employees to use other leave first.
• Sick leave provided for under the act does not carry over from year to year, and the requirements expire December 31, 2020.

Notice Requirements:
• Employers must post a model notice, which will be provided by the federal government.
Note: The act reserves the right for the Secretary to exclude certain care providers and first responders from the list of “eligible employees” and exempt small businesses with fewer than 50 employees if business viability was jeopardized.

Payroll Tax Credit
• Applies to both the emergency FMLA expansion and the emergency sick leave.
• Dollar for dollar credit for sick leave and paid FMLA wages against the employer portion of Social Security taxes.
• Refund is possible for amounts that exceed what is available as a credit.
• Limits on what can be claimed mirror the caps for what must be paid.

Health Plan Benefit Mandate

• The act requires all insured and self-funded medical plans, including grandfathered plans, to cover diagnostic testing-related services for COVID-19 at 100 percent without any deductibles or co-pays.
• Examples include services provided by doctors, emergency rooms, and urgent care centers leading up to the decision that testing is needed, along with the actual lab-based testing.
• The mandate does not apply to treatment.

Read US H.R. 6201

FREQUENTLY ASKED QUESTIONS

In addition, here are some additional FAQs for your consideration. Please remember the answers to these questions are based on the date they were submitted. Information may have changed and you are encouraged to seek legal counsel or read updates from the resources provided:

Question (originally requested March 17, 2020):
Can we send employees home if they are symptomatic?
Answer:
Yes. The Centers for Disease Control and Prevention (CDC) has advised employers that employees who appear to have symptoms of COVID-19 (e.g., cough, shortness of breath) should be separated from other employees and sent home immediately. If the employee feels well enough to work, consider whether they can effectively telecommute.

Question (originally requested March 18, 2020):
What should we do if an employee says their symptoms are not related to COVID-19?
Answer:
The Equal Employment Opportunity Commission (EEOC) and the Centers for Disease Control and Prevention (CDC) advise employers to send employees home when they have COVID-19 symptoms (fever, cough, shortness of breath). Employees should not return until they are symptom free for at least 24 hours without symptom-altering medication (e.g., Tylenol, cough suppressants). The CDC is asking employers not to request a doctor’s note because of the current strain on our healthcare system due to the pandemic.
If an employee claims that their symptoms are attributed to another cause (e.g., allergies, asthma), the most risk-adverse response would be to send employees home when they have COVID-19 symptoms, with pay. We understand that providing paid leave for all employees is not feasible for every business, but paid leave will incentivize employees to be honest and help you keep your workplace safe.
The CDC has a risk assessment tool available (listed above under Resources), which might be helpful. We would also note that, based on news reports, some people have tested positive for COVID-19 without any known exposure.

Question (originally requested March 17, 2020):
Can we require or allow certain groups of employees, but not others, to work from home?
Answer:
Yes. Employers may offer different benefits or terms of employment to different groups of employees as long as the distinction is based on nondiscriminatory criteria. For instance, a telecommuting option or requirement can be based on the type of work performed, employee classification (exempt v. nonexempt), or location of the office or the employee. Employers should be able to support the business justification for allowing or requiring certain groups to telecommute.

Question (originally requested March 17, 2020):
Do any leaves apply for missing work due to COVID-19?
Answer:
Whether Family and Medical Leave Act (FMLA) leave or a state family and medical leave or insurance program will apply to a particular case of COVID-19 will be fact-specific. Even if FMLA or state leaves do not apply, though, we would recommend that employers treat leaves related to this illness as job-protected, both for legal reasons and because it’s the right thing to do. If you’re in a state with a sick leave law, that will apply if the employee is sick, a family member is sick, or (in many states) when an employee is told to stay home by a public health authority.

Question (originally requested March 17, 2020):
If we choose to close temporarily, do we need to pay employees?
Answer:
It depends on the employee’s classification.
Nonexempt employees only need to be paid only for actual hours worked. For these employees, you may:
• Pay the employee for the time, even though they did not work;
• Require they take the time off unpaid;
• Require they use any available vacation time or paid time off (PTO); or
• Allow employees to choose between taking an unpaid day or using vacation or PTO.
• All four (4) options are compliant with state and federal law. We generally recommend option four (4) — allowing but not requiring employees to use vacation time or PTO. If your office is required to close by health authorities and your state has a sick leave law, employees may be able to use accrued paid sick leave during the closure.
Exempt employees must be paid their regular workweek salary unless the office is closed for an entire workweek and they do no work at all from home. You can, however, require them to use accrued vacation or PTO during a closure if you have a policy that indicates you will do so, or if this has been your past practice. When it comes to accrued vacation or PTO, it is safest to give employees advance notice if there are situations where you will use their accrued hours whether they like it or not.

Question (originally requested March 17, 2020):
What if my employee discloses that their family member or roommate has COVID-19?
Answer:
Our recommendation is to follow guidance from the Centers for Disease Control and Prevention (CDC). Employers should ask employees who live with someone confirmed to have COVID-19 to notify a designated HR representative or their supervisor as soon as possible. The employer and employee should then refer to CDC guidance to assess risk and determine next steps — see Tables 1 and 2 in the CDC’s Interim US Guidance for Risk Assessment and Public Health Management (listed above under Resources).

Question (originally requested March 17, 2020):
If we close temporarily, will employees be able to file for unemployment insurance?
Answer:
Depending on the length of the closure, employees may be able to file for unemployment insurance. Waiting periods range from 1 – 3 weeks and are determined by state law. Be prepared to respond to requests for verification or information from the state unemployment insurance department if you close for longer than the mandatory waiting period. (Colorado requires a 1 week waiting period.)

Question (originally requested March 17, 2020):
How do I make a telecommuting policy?
Answer:
Although some employers will be comfortable sending everyone home with their laptop and saying “go forth and be productive,” most will want to be a little more specific. A good telecommuting policy will generally address productivity standards, hours of work, how and when employees should be in contact with their manager or subordinates, and office expenses.
For instance, your policy might require that employees are available by phone and messaging app during their regular in-office hours, that they meet all deadlines and maintain client contacts per usual, and that they check in with their manager at the close of each workday to report what they have accomplished. Be sure to let employees know whom to contact if they run into technical difficulties at home.
You’ll also want to specify how expenses related to working from home will be dealt with. If you don’t expect there to be any additional expenses involved, communicate this. You don’t want employees thinking this is their chance to purchase a standing desk and fancy ergonomic chair on your dime. That said, you should consider whether employees will incur reasonable and necessary expenses while working from home. Some states mandate reimbursement for these kinds of expenses, but it’s a good practice to cover such costs even if it’s not required by law.

Question (originally requested March 17, 2020):
Given COVID-19, if an employee is out of the office due to sickness, can we ask them about their symptoms?
Answer:
Yes, but there are correct ways to do this. In most circumstances, employers shouldn’t ask about an employee’s symptoms, as that could be construed as a disability-related inquiry. Under the circumstances, however — and in line with an employer’s responsibility to provide a safe workplace — we recommend asking specifically about the symptoms of COVID-19 and making it clear that this is the extent of the information you’re looking for.
Here’s a suggested communication: “Thank you for staying home while sick. In the interest of keeping all employees as safe as possible, we’d like to know if you are having any of the symptoms of COVID-19. Are you experiencing a fever, cough, and/or shortness of breath?”
Remember that medical information must be kept confidential as required by the Americans with Disabilities Act (ADA). If the employee does reveal that they have symptoms of COVID-19, or has a confirmed case, you should see the CDC’s Interim Guidance to determine next steps. Tables 1 and 2 will help you assess risk and determine what steps, if any, should be taken.

Question (originally requested March 17, 2020):
What if I have a fearful employee who refuses to come to work because of COVID-19?
Answer:
Generally, employees do not have a right to refuse to work based only on a generalized fear of becoming ill. If their fear is not based on objective evidence of possible exposure, you can enforce your attendance policies.
You should be prepared for employees who express anxiety about coming to work and evaluate any request on a case-by-case basis. Consider alternative arrangements such as telecommuting if possible. Employees who are immunocompromised or have other relevant disabilities may be entitled to a reasonable accommodation, such as working from home or taking a leave if working from home is not possible.
If the nature of the employee’s position does not allow telecommuting, and there is no legitimate threat, reiterate the steps they can take to keep themselves safe from contracting the virus and explain the proactive steps you are taking to keep infection risk low in the workplace.
Please keep in mind that multiple employees expressing concerns regarding safe workplaces may be protected under the National Labor Relations Act as concerted activity.

Question (originally requested March 18, 2020):
Can we reduce pay because of economic slowdown due to COVID-19?
Answer:
You can reduce an employee’s rate of pay based on business or economic slowdown, provided that this is not done retroactively. For instance, if you give employees notice that their pay will change on the 10th, and your payroll period runs from the 1st through the 15th, make sure that their next check still reflects the higher rate of pay for the first 9 days of the payroll period.
Nonexempt employees (those entitled to overtime):
A nonexempt employee’s new rate of pay must still meet the applicable federal, state, or local minimum wage. Employees must be given notice of the change to their rate of pay, and some states require advance notice.
Exempt employees (those not entitled to overtime):
An exempt employee’s new salary must still be at or above the federal or state minimum for exempt employees. The federal minimum salary is $684 per week. Several states have weekly minimums that are higher than that (California and New York, for instance, are in the $1,000 per week range). The minimum may not be prorated based on hours worked.
Exempt employee reclassification:
If an exempt employee has so little work to do that it does not make sense to pay them the federal or state minimum (or you simply cannot afford to), they can be reclassified as nonexempt and be paid by the hour instead. This must not be done on a very short-term basis. Although there are no hard and fast rules about how long you can reclassify someone, we would recommend not changing their classification unless you expect the slowdown to last for more than three weeks. Changing them back and forth frequently could cause you to lose their exemption retroactively and potentially owe years of overtime.
Employees with contracts or CBAs:
If employees have employment contracts or are subject to collective-bargaining agreements (CBAs, you should consult with an attorney before makes any changes to pay.

Question (originally requested March 17, 2020):
Can employees refuse to travel to areas considered safe from COVID-19?
Answer:
You can require employees to travel as long as you meet your general duty under the Occupational Safety and Health Administration (OSHA) to provide a workplace (including any travel location) that is free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees.
To ensure that you are not subjecting an employee to excessive risk, check the CDC’s Traveler’s Health Notices for the latest guidance and recommendations for each country where the employee is traveling.
Perhaps more important than whether you can force an employee to travel is whether you should. Requiring a fearful employee to travel will erode trust and confidence and likely cause them significant anxiety. Consider video calls or videoconferencing as an (inexpensive!) alternative to traveling for the next few weeks or months.
Also keep in mind that employees who are immunocompromised or have other relevant disabilities may be entitled to an accommodation (such as not traveling, given current conditions) under the Americans with Disabilities Act (ADA).

Question (originally requested March 18, 2020):
What’s the difference between a furlough and a layoff?
Answer:
First, you should note that the language used when sending employees home for a period of time is less important than communicating your actual intent. Since temporary layoffs and furloughs are only used regularly in certain industries (usually seasonal), you should not assume that employees will know what the different terms mean. Be sure to communicate your plans for the future, even if they feel quite uncertain or are only short-term. Transparency is best practice.

Furlough:
A furlough continues employment but reduces scheduled hours or requires a period of unpaid leave. The thought process is that having all employees incur a bit of hardship is better than some losing their jobs completely. For example, a company may reduce hours to 20 per week for a period of time as a cost-saving measure, or they may place everyone on a two-week unpaid leave. This is typically not considered termination; however, you may still need to provide certain notices to employees about the change in the relationship, and they would likely still be eligible for unemployment.
If the entire company won’t be furloughed, but only certain employees, it is important to be able to show that staff selection is not being done for a discriminatory reason. You’ll want to document the nondiscriminatory business reasons that support the decision to furlough certain employees and not others, such as those that perform essential services.

Layoff:
A layoff involves terminating employment during a period when no work is available. This may be temporary or permanent. If you close down completely, but you intend to reopen in the relatively near future or have an expected reopening date — at which time you will rehire an employee, or all employees — this would be considered a temporary layoff. Temporary layoffs are appropriate for relatively short-term slowdowns or closures. A layoff is generally considered permanent if there are no plans to rehire the employee or employees because the slowdown or closure is expected to be lengthy or permanent.

Pay for exempt employees (those not entitled to overtime):
Exempt employees do not have to be paid if they do no work at all for an entire workweek. However, if work is not available for a partial week for an exempt employee, they must be paid their full salary for that week, regardless of the fact that they have done less work. If the point is to save money (and it usually is), it’s best to ensure that the layoff covers the company’s established seven-day workweek for exempt employees. Make it very clear to exempt employees that they should do absolutely no work during any week you’re shut down. If exempt employees do any work during that time, they will need to be paid their normal weekly salary.

Pay for nonexempt employees (those entitled to overtime):
Nonexempt employees only need to be paid for actual hours worked, so single day or partial-week furloughs can be applied to them without worrying about pay implications.

We recommend that you engage in open communication with the affected employees before and during the furlough or temporary layoff period.

6 ways the coronavirus outbreak will affect construction

Experts predict COVID-19 will have long-term ramifications for many aspects of the U.S. construction industry.

Background
As the COVID-19 (Novel Coronavirus) makes its way to the west, including Colorado, business owners and employers must remain aware of best practices in order to proactively meet the challenges our workplace environments may face.

The following information is provided as a summary of information collected from official websites and various legal firms in order to assist as guidance for employee relations and workplace concerns. As this information changes rapidly, it is encouraged to check with the resource websites often. Please remember, this information is only offered as a guideline and employers should check with legal counsel prior to modifying or implementing policies and practices in response to the COVID-19.

In addition, we have provided some resources for flyers and posters you may use to distribute throughout your place of work.

Workforce Impacts

 Colorado Department of Labor & Employment enacted the Colorado Health Emergency Leave with Pay (Colorado Help) effective March 11, 2020 and remains in effect for 30 days or as long as the State of Disaster Emergency lasts, up to a maximum of 120 days.

o Colorado employers in certain industries (leisure and hospitality, food services, child care, education (all levels and related services such as cafeterias and transportation), home health care (serving the elderly, disabled, ill, or other high-risk patients), employed in a nursing home, doing business in a community living facility) are required to:

 Provide up to four (4) days of paid sick leave for an employee a) “with flu-like symptoms, and b) who is being tested for COVID-19.” The CDLE further states the leave terminates if the employee tests negative.
 If an employer already offers adequate sick time, they are not required to offer this in addition to sick leave. However, if an employee has fully exhausted such leave, and meets the above criteria, they must receive the relief.
 These four (4) days must be paid at the employee’s regular rate of pay (defined in the COMPS Wage Order #36) and number of regular worked hours prior to any illness due to flu-like symptoms.
 Follow all Family Medical Leave regulations, both state and federal, regarding designated leave. In addition, employers may not terminate an employee for an inability to provide documentation from a care provider during an illness covered by these emergency rules.

o For more information, please click on Colorado HELP

 Workplace Concerns: COVID-19 impacts the workplace in many different ways, including the following, just to name a few. Employers must consider how they will address these issues:

o School closures causing childcare issues
o Employees requesting to stay home/call-offs
o Businesses facing slowdown periods in business causing reduced working hours
o Furlough days due to lack of business, mitigating the spread, etc.
o Travel restrictions affecting business travel
o Reduced workforce due to illnesses or quarantines, including volunteers
o Lack of vacation/sick leave available for sick or quarantined employees

 Proactive Processes: Taking a proactive approach to as many of these issues as possible allows employers to mitigate some of the impacts. During this epidemic, businesses need to review related workplace policies, including, but not limited to, the following:

o Communication systems (cellular, network and manual) – alerts for the following: staff, customers/patients/families
o Vacation/PTO/Sick policies

 Requiring a provider’s note to return
 Exempt v. hourly employees

o Absence policies
o Isolation policies
o Family Medical Leave Act/Americans with Disabilities Act and Amendment Act (limited)
o Telecommuting as appropriate

 Information Systems – computers, network access, etc.

o Business travel, including workers’ compensation policies
o Contingency staffing (temporary, travel, etc.)
o Emergency/Disaster preparedness plans, including job coverage, volunteer action plans, etc.
o Crisis Prevention and Response

 Crisis + Emergency Risk Communication Information
 Mitigation Strategies for COVID-19

Employee Safety
 We all know that OSHA (Occupational Safety and Health Administration) requires business professionals to provide a work environment free from any recognized hazards, including providing training to employees in a language they can understand.
 Providing a safe workplace may include distributing information on the following:

o Basic information from the CDC:

 Basic Information on COVID-19-19
 Additional Information on COVID-19
 Information for if you are sick with COVID-19
 Preventing the spread of germs
 Symptoms of COVID-19

o Preventative practices from CDC:

 Proper handwashing technique
 Cover your cough and sneeze

o Staying home when ill

 Stay home when ill

o Appropriate Precautions

 Environmental Cleaning and Disinfection

Legal Considerations

 As with any workplace policy, business professionals must consider legal implications or risks when enforcing policies related to communicable diseases. The following are statements from the Center for Disease Control (CDC), Harvard Business Review, and/or the Society for Human Resource Management (SHRM):

o Required Quarantine:

 Employers who have employees who traveled high risk areas should require employees not to return to the work site for 14 days.
 Public health organizations recommend that companies bar employees or visitors from coming to the workplace for a period 14 days after a “medium” or “high-risk” exposure to the virus…
 As of 3/10/20, the countries listed in the “medium” to “high” risk categories include the following:
 China
 Iran
 Other countries with sustained community transmission (such as Japan and Italy)

o Discriminatory Practices: Ensure that employees from protected classes are not targeted in enforcement of policies:

 Asians
 Elderly

o Americans with Disabilities Act and Amendment Act: When an organization takes action regarding an employee with symptoms, they may be regarding that employee as “disabled” under the Americans with Disabilities Act Amendment Act if the action lasts longer than a “transitory and minor” period of time.
o Unemployment Insurance: If employees are restricted from coming to work due to quarantines or site shut-downs, they may be entitled to unemployment benefits due to a “lay-off” or partial separation. Per Governor Polis’ statement “For workers who test positive and lack access to paid leave, the governor is directing CDLE to identify additional supports and wage replacement such as access to unemployment insurance.”

 Colorado State of Emergency

o National Labor Relations Act (NLRB) and OSHA: non-supervisory personnel may have the right to refuse to work in conditions if they believe the conditions are unsafe. However, this belief must be based on “reasonable, good-faith” information. Further, employers must remain aware of union representation and collective bargain provisions. In addition, employees may have the right to wear protective equipment, regardless of the employer’s policies.

Employers must stay abreast of quickly developing conditions regarding COVID-19 and how it may impact the community and workplaces. The following are websites for your convenience:

 Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease
 Public Health Response to the Coronavirus Disease 2019 Outbreak
 Mesa County Public Health – Coronavirus Response – COVID-19

Disclaimer:
Lighthouse HR Support (LHRS) provides practical human resource information and guidance based upon our knowledge and experience in the industry and with our clients. LHRS services are not intended to be a substitute for legal advice. LHRS services are designed to provide general information to human resources and/or business professionals regarding human resource concerns commonly encountered. Given the changing nature of federal, state and local legislation and the changing nature of court decisions, LHRS cannot and will not guarantee that the information is completely current or accurate. LHRS services do not include or constitute legal, business, international, regulatory, insurance, tax or financial advice. Use of our services, whether by phone, email or in person shall indicate your acceptance of this knowledge.

SPECIAL BULLETIN – for Colorado Employers (Human Resources)

Provided by Employer Representatives Inc.   www.erius.biz

The Colorado Department of Labor and Employment (CDLE) made significant revisions to the existing Minimum Wage Order #35 and it affects the majority of Colorado private employers. Most of these changes take effect March 16, 2020 and we want to ensure Colorado employers are ready.

The following serves as a summary of the changes employers must prepare for. We encourage all employers to read the final rule (click this link to read the final rule COMPS #36).
Employers: The definition of covered employers expanded to virtually all private employers, including the manufacturing, oil and gas, and construction industries.

Time Worked: Defined as all time for which the employer requires or permits the employee to work that requires over one minute to perform the task. For instance, if an employer permits an hourly employee to check their email off campus, this time must be recorded and compensated. In addition, if an employee is required to wear work clothes or gear that may not be worn outside of work, the employee is compensated for the time to change clothes.

These are just a few examples of newly defined compensable time requirements.

Rest Periods: In the past, employers must provide a 10-minute rest period for employees working more than four (4) hours at a time for each four (4) hour segment. Now, the employer must permit and authorize this action or compensate the employee for the time they worked. For example, if a laborer is not permitted and authorized to take a 10-minute break in a four (4) hour shift due to the demands of the job, the employer must compensate the employee 10 minutes for every 10-minute break not permitted. Therefore, in a regular eight (8) hour day, the employer will owe the employee 20 minutes if they do not permit the employee to take the break.

An employee and employer may enter a written agreement for up to one year that they may take two (2) 5-minute breaks in lieu of the single 10-minute break as long as this allows the employee time to use the restroom and/or use a “bona fide” break area. Additionally, some modified break scenarios may be applied to employees governed by a collective bargaining agreement.
Travel Time: The new rule clarifies that when an employee spends time on travel for the benefit of the employer, they shall be compensated for this time. Specifically, the rule states “normal home to work travel” may be excluded. For example, if a worker drives from their home to the Grand Junction plant, it is considered normal home to work travel if the Grand Junction plant is their “home base”. However, if they must travel from the Grand Junction plant to the Glenwood plant, this time is compensable as travel time.

Credits Toward Minimum Wages: The rule clarifies what deductions an employer may deduct from the employee’s paycheck:

• Lodging Credit. A lodging credit for housing furnished by the employer and used by the employee may be considered part of the minimum wage if it is:

(A) no greater than the smaller of
           (1) the reasonable and actual cost to the employer of providing the            housing,
           (2) the fair market value of the housing, or
           (3) $25 per week for a room (in a shared residence, dormitory, or hotel) or $100 per week for a private residence (an apartment or a house);
o

(B) accepted voluntarily and without coercion, and primarily for the benefit or convenience of the employee, rather than of the employer; and

(C) recorded in a written agreement (electronic form is acceptable) that states the fact and amount of the credit (but need not be a lease).

Meal Credit. A meal credit, equal to the reasonable cost or fair market value of meals provided to the employee, may be used as part of the minimum hourly wage. No profits to the employer may be included in the reasonable cost or fair market value of such meals furnished. Employee acceptance of a meal must be voluntary and un-coerced.

Uniforms: Historically, an employer may require a reasonable security deposit to ensure the employee would return the uniform if they left the company. Now, employers are prohibited from collecting such deposit.

Posting Requirements: Employers must display the COMPS Order poster in an area frequented by employees and where it may be easily read or (much like the existing labor poster requirements). If the employer does not have such a location, they must provide a copy of the COMPS poster (or the order itself) to all employees within the first month of employment and any time an employee requests a copy.

In addition, the COMPS Order must be included in any employee handbook, manual, or policy that is published or distributed to the employees. If the employer requires the employees to sign for the employee handbook, manual, or policy, the must also require the employees to sign an acknowledgement for the COMPS order.

Further, employers must provide the COMPS Order in a language other than English for employees with limited English language abilities.

Recording Requirements: Employers are required to keep the employee’s itemized earnings statements for at least three (3) years and “for the duration of any pending wage claim pertaining to the employee.”
Tracking Requirements: With the added burden of tracking the employee’s 10-minute break time, additional compensable time (when required or permitted to work), and the clarification as to what constitutes travel time,
it is more important than ever for employers to track, record, and ensure accurate compensation for hourly employees.

Employers must remember that the Colorado Failure to Pay Wages Bill (House Bill 19-1267) that went into effect January 1, 2020, makes wage discrepancies a criminal offense.

In addition, effective July 1, 2020, Colorado adopts new requirements for exempt status in addition to the federal Fair Labor Standards Act (FLSA). While many of the categories mirror the federal requirements, Colorado did modify several widely used categories, such as (this is not an all-inclusive list):

• Executive (or supervisors): “who supervises the work of at least two full-time employees and has the authority to hire and fire, or to effectively recommend such action. The employee must spend a
minimum of 50% of the workweek in duties directly related to supervision.” For example, if a superintendent does not spend a minimum of 50% of their time supervising the employees, they may not qualify for this exemption.

• Administrative: “who directly serves the executive and regularly performs duties important to the decision-making process of the executive.” For example, if an administrative assistant does not directly serve the executive of the company and does not make decisions important to/for the executive, they may not qualify for this exemption.
• Owners or proprietors: “This exemption covers a full-time employee actively engaged in management of the employer who either:
o      (A) owns at least a bona fide 20% equity interest in the employer; or
o      (B) for a non-profit employer, is the highest-ranked and highest-paid employee, and is paid at least the salary threshold in Rule 2.5.”

Further, these exemptions come with a new price tag as well. While the thresholds mirror the FLSA wage requirements in 2020, starting January 1, 2021, they deviate from the federal standard.

Beginning 2021, the minimum salary threshold for an exempt employee increases as follows:
• 1/1/21: $778.15 per week/$40,500.00 per year
• 1/1/22: $865.38 per week/$45,500.00 per year
• 1/1/23: $961.54 per week/$50,000.00 per year
• 1/1/24: $1,057.69 per week/$55,000.00 per year
• 1/1/25: minimum salary threshold may adjust based on the Consumer Price Index (CPI) currently used to determine minimum wage in Colorado.
Disclaimer:

Employer Representatives Inc. (ERI) provides practical human resources information and guidance based upon our knowledge and experience in the industry and with our clients. ERI services are not intended to be a substitute for legal advice. ERI services are designed to provide general information to human resources and/or business professionals regarding human resources concerns commonly encountered. Given the changing nature of federal, state and local legislation and the changing nature of court decisions, ERI cannot and will not guarantee that the information is completely current or accurate. ERI services do not include or constitute legal, business, international, regulatory, insurance, tax or financial advice. Use of our services, whether by phone, email or in person shall indicate your acceptance of this knowledge.