SAFER AT HOME EXTENDED
June 2, 2020

Summer has officially started and we move into June with an extension of Safer at Home from Governor Polis (click here for the full Order). While we all may be experiencing regulation fatigue and confusion of what actually is still in place, it is important to remain compliance for the safety of our employees and community.

Effective June 1, 2020, Executive Order D 2020 091, requires an extension of the Safer at Home order. Let’s review what that actually means (and refresh our memories since there have been so many different ones). This is set to expire on July 1, 2020, unless extended.

Note: Several counties have either been granted or have requested variances from these state requirements. Please check with your local county resources for additional information.

Vulnerable Individuals
• Vulnerable individuals should stay at home as much as possible or travel to the “great outdoors” staying away from as many people as they can. In addition, they must continue to social distance by remaining at least six (6) feet away from other individuals that do not live with them and wear facial coverings when in public (as should everyone else).
• Employers (businesses or government entities) may not require vulnerable individuals to work in positions requiring in-person interactions, even if they are designated as a Critical Business or as a Critical Government Function.
• Companies should also consider accommodating workers who live with a vulnerable individual and for individuals with responsibilities for childcare.
• According to the Order, Vulnerable Individuals are those who are or have:

o 65 years and over
o Moderate to severe asthma
o Chronic lung disease
o Serious heart conditions
o Immunocompromised
o Pregnant
o Designated as high risk by a licensed healthcare provider

Higher Education
• The Executive Director of the Colorado Department of Higher Education (CDHE) may deem certain programs or courses as unteachable through remote environments.
• In this case, the program or course may be presented through limited in-person environments.
Preventing Discrimination
• Adhere to requirements under the Americans with Disabilities Act;
• Offer reasonable accommodations for those showing symptoms of COVID-19 or who have been in recent contact with another person who tested positive with COVID-19.

Colorado Health Emergency Leave and Pay Rules (HELP) – (click here for the Rule)
• Continue compliance with these rules as extended for up to 14 days if a worker has:

o Tested positive for COVID-19
o Exhibits COVID-19 symptoms
o Directed to quarantine or isolate due to COVID-19 concerns

Other Requirements

• If employees refuse to return to work due to evident unsafe working conditions, the Colorado Department of Labor and Employment (CDLE) will ensure they are eligible for unemployment insurance.
• Public or private gatherings with more than nine (9) individuals are prohibited unless previously approved by this Order or another Order still effective.
• Businesses remain strongly encouraged to offer employees remote work when possible.
• Non-critical retail businesses may offer delivery, window, walk-up, drive-through, drive-up, or curbside delivery services. In addition, they may permit customers on the premise if they ensure compliance with the mandatory social distancing requirements of this Order.
• Public Accommodation places may offer food and beverages through delivery, window, walk-up, drive-through, drive-up services; curbside delivery, outside dining, limited indoor dining, or any other manner listed in the Order. They must ensure compliance with the mandatory social distancing requirements of this Order.
• All businesses under this Order with 50 or more employees in one environment must follow protocols in the Order, including checking for temperatures and screening for symptoms, closing common areas, implementing cleaning protocols, and ensuring compliance with the mandatory social distancing requirements of this Order.

If you wish to review our blog “Safer at Home – Returning to Work (An HR Perspective)”, please click here. Here is a summary of what we discussed:
• Examine the future of your business
o Strategic planning
o Structures
 Policies and Job descriptions
 The need for in-person meetings
o Resources
 Finances
 Workforce
 Materials
o Contingency plans
• Upcoming employment laws
o Equal Pay for Equal Work effective January 1, 2020
• Safeguarding the work environment for returning to the workplace considerations
o Checking temperatures
o When background screening is required for returning staff
• Workforce considerations
o Recruitment
o Returning those from furloughs or layoffs
o Retention through culture and support

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

Department of Labor’s COVID-19 Updates

On May 15, 2020, the U.S. Department of Labor (DOL) announced all of the following COVID-19 updates and resources:

• Up to $100 million will be made available for states to implement or improve short-time compensation programs, which aim to avoid layoffs by reducing hours for a group of workers
• Additional guidance for states on the Federal Pandemic Unemployment Compensation Program
• Guidance and reminders to help states ensure the integrity of their unemployment insurance programs
• Occupational Safety and Health Administration (OSHA) alert on protecting dental industry workers
• OSHA alert on protecting rideshare and taxi workers
• OSHA alert on protecting retail pharmacy workers
• Information on the Pandemic Emergency Unemployment Compensation program for states updated
• OSHA video demonstrating the proper use of respirators in Spanish
• Fact sheets, FAQs, posters, webinars and more to help employers comply with the paid leave requirements of the

Families First Coronavirus Response Act
• DOL COVID-19 tips, updates, and resources
EEOC Delays EEO-1 Data Collection
On May 7, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) announced the delay of the 2019 EEO-1 Component 1 data collection and the 2020 EEO-3 and EEO-5 data collections due to the COVID-19 public health emergency.

The EEO surveys collect data from employers in different sectors of the workforce. The following surveys were scheduled to open in 2020:
• 2019 EEO-1 Component 1, (Employer Information Report);
• 2020 EEO-3, (Local Report); and
• 2020 EEO-5, (Elementary-Secondary Staff Information Report).
EEO-1, EEO-3, and EEO-5 filers will now submit data in 2021. The EEOC anticipates that data
collection will begin:
• In March 2021 for 2019 and 2020 EEO-1 Component 1 data; and
• In January 2021 for 2020 EEO-3 and EEO-5 data.

The EEOC will notify filers of the precise date the surveys will open as soon as it is established.
Read the press release
Payroll Protection Program and Employee Retention Credits

On May 7, 2020, the Internal Revenue Service (IRS) updated its frequently asked questions (FAQs)
about the Payroll Protection Program (PPP) and the Employee Retention Credit under the Cares Act.
The Employee Retention Credit (ERC) is a tax credit equal to 50 percent of the qualified wages that
eligible employers paid to employees (up to $5,000 per employee) after March 12, 2020 and before
January 1, 2021. Employers that receive a PPP loan are not qualified for the ERC.
The IRS clarified in its updated FAQ that an employer that repays its PPP loan by May 14, 2020 will be
treated as though they did not receive it and may still receive the ERC (if otherwise eligible). This
updated FAQ is important because the repayment date was originally May 7, 2020.
See the FAQs and read about the Employee Retention Credit
EEOC, COVID-19, ADA, the Rehabilitation Act, and Other EEO Laws

On May 5, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) updated the following
technical assistance questions and answers addressing return to work and the Americans with
Disabilities Act (ADA), the Rehabilitation Act, and other equal employment opportunity (EEO) laws:
(G.3) What does an employee need to do in order to request reasonable accommodation from
their employer because they have one of the medical conditions that CDC says may put them at
higher risk for severe illness from COVID-19? (updated 5/5/20)
An employee – or a third party, such as an employee’s doctor – must let the employer know that they
need a change for a reason related to a medical condition (here, the underlying condition). Individuals
may request accommodation in conversation or in writing. While the employee (or third party) does not
need to use the term “reasonable accommodation” or reference the ADA, they may do so.
The employee or their representative should communicate that they have a medical condition that
necessitates a change to meet a medical need. After receiving a request, the employer may ask
questions or seek medical documentation to help decide if the individual has a disability and if there is a
reasonable accommodation, barring undue hardship, that can be provided.
(G.4) The CDC identifies a number of medical conditions that might place individuals at “higher
risk for severe illness” if they get COVID-19. An employer knows that an employee has one of
these conditions and is concerned that his health will be jeopardized upon returning to the
workplace, but the employee has not requested accommodation. How does the ADA apply to
this situation? (5/7/20)

First, if the employee does not request a reasonable accommodation, the ADA does not mandate that
the employer act.

If the employer is concerned about the employee’s health being jeopardized upon returning to the
workplace, the ADA does not allow the employer to exclude the employee – or take any other adverse
action – solely because the employee has a disability that the CDC identifies as potentially placing
them at “higher risk for severe illness” if they get COVID-19. Under the ADA, such action is not allowed
unless the employee’s disability poses a “direct threat” to their health that cannot be eliminated or
reduced by reasonable accommodation.

The ADA direct threat requirement is a high standard. As an affirmative defense, direct threat requires
an employer to show that the individual has a disability that poses a “significant risk of substantial harm”
to their own health under 29 CFR § 1630.2(r). A direct threat assessment cannot be based solely on
the condition being on the CDC’s list; the determination must be an individualized assessment based
on a reasonable medical judgment about this employee’s disability – not the disability in general – using
the most current medical knowledge and/or on the best available objective evidence. The ADA
regulation requires an employer to consider the duration of the risk, the nature and severity of the
potential harm, the likelihood that the potential harm will occur, and the imminence of the potential
harm. Analysis of these factors will likely include considerations based on the severity of the pandemic
in a particular area and the employee’s own health (for example, is the employee’s disability wellcontrolled),
and their particular job duties. A determination of direct threat also would include the
likelihood that an individual will be exposed to the virus at the worksite. Measures that an employer may
be taking in general to protect all workers, such as mandatory social distancing, also would be relevant.

Even if an employer determines that an employee’s disability poses a direct threat to his own health,
the employer still cannot exclude the employee from the workplace – or take any other adverse action –
unless there is no way to provide a reasonable accommodation (absent undue hardship). The ADA
regulations require an employer to consider whether there are reasonable accommodations that would
eliminate or reduce the risk so that it would be safe for the employee to return to the workplace while
still permitting performance of essential functions. This can involve an interactive process with the
employee. If there are not accommodations that permit this, then an employer must consider
accommodations such as telework, leave, or reassignment (perhaps to a different job in a place where
it may be safer for the employee to work or that permits telework). An employer may only bar an
employee from the workplace if, after going through all these steps, the facts support the conclusion
that the employee poses a significant risk of substantial harm to themselves that cannot be reduced or
eliminated by reasonable accommodation.

(G.5) What are examples of accommodation that, absent undue hardship, may eliminate (or
reduce to an acceptable level) a direct threat to self? (updated 5/5/20)
Accommodations may include additional or enhanced protective gowns, masks, gloves, or other gear
beyond what the employer may generally provide to employees returning to its
workplace. Accommodations also may include additional or enhanced protective measures, for
example, erecting a barrier that provides separation between an employee with a disability and
coworkers/the public or increasing the space between an employee with a disability and
others. Another possible reasonable accommodation may be elimination or substitution of particular
“marginal” functions (less critical or incidental job duties as distinguished from the “essential” functions
of a particular position). In addition, accommodations may include temporary modification of work
schedules (if that decreases contact with coworkers and/or the public when on duty or commuting) or
moving the location of where one performs work (for example, moving a person to the end of a
production line rather than in the middle of it if that provides more social distancing).

These are only a few ideas. Identifying an effective accommodation depends, among other things, on
an employee’s job duties and the design of the workspace. An employer and employee should discuss
possible ideas; the Job Accommodation Network (www.askjan.org) also may be able to assist in
helping identify possible accommodations. As with all discussions of reasonable accommodation during
this pandemic, employers and employees are encouraged to be creative and flexible.
See the updated questions and answers and all EEOC materials related to COVID-19
Revised Voluntary Self-Identification of Disability Form for Federal Contractors

On May 5, 2020, the Office of Federal Contract Compliance Programs (OFCCP) announced the
release of a revised Voluntary Self-Identification of Disability Form (Form CC-305). Contractors have
until August 4, 2020, to implement this revised form into their applicant and employee systems and
processes. Contractors must continue use of the 2017 version of the form until they have incorporated
the revised form.
See the revised form
OSHA Safety Alert for Restaurants and Food and Beverage Businesses

On May 1, 2020, the Occupational Safety and Health Administration (OSHA) issued an alert with the
following safety tips for restaurants and food and beverage businesses to protect their workers from
COVID-19 exposure while they provide curbside pickup and takeout service:
• Reserve parking spaces near the front door for curbside pickup only;
• Avoid direct hand-off when possible;
• Display a door or sidewalk sign with the services available (for instance, take-out and/or
curbside), instructions for pickup, and hours of operation;
• Practice sensible social distancing by maintaining six feet between co-workers and customers,
mark six-foot distances with floor tape in pickup lines, encourage customers to pay in advance
via phone or online, and temporarily move workstations to create more distance and install
plexiglass partitions, if feasible;
• Allow workers to wear masks over their nose and mouth to prevent them from spreading the
virus;
• Provide a place to wash hands and provide alcohol-based hand rubs containing at least 60
percent alcohol; and
• Encourage workers to report any safety and health concerns.
Read the alert
COVID-19 Temporary Policy for List B Identity Documents

On May 1, 2020, the U.S. Citizenship and Immigration Services (USCIS) announced that Form I-9,
Employment Eligibility Verification, List B identity documents that are set to expire on or after March 1,
2020 (and are not extended) may temporarily be treated by employers as valid for Form I-9 purposes.
This temporary policy was enacted because of the many areas that are under stay-at-home orders due
to COVID-19 and some online renewal services have restrictions. Subsequently, employees may
experience challenges when trying to renew their driver’s license, a state ID card, or other acceptable
List B identity documents.
When an employee provides an acceptable expired List B document, not extended by the issuing
authority, employers must:
• Record the document information in Section 2 under List B, as applicable; and,
• Enter the word “COVID-19” in the Additional Information Field.
When the employee later presents an unexpired document, employers should, in the Section 2
Additional Information field:
• Record the number and other required document information from the actual document
presented; and
• Initial and date the change.

If the employee’s List B identity document expired on or after March 1, 2020, and the issuing authority
extended the document expiration date due to COVID-19, the document is acceptable as a List B
document for Form I-9 (not as a receipt) during the extension timeframe specified by the issuing
authority.

When an employee provides an acceptable expired List B document, extended by the issuing authority,
employers should:
• Enter the document’s expiration date in Section 2; and,
• Enter “COVID-19 EXT” in the Additional Information Field.
Employers may also attach a copy of a webpage or other notice indicating that the issuing authority has
extended the documents. Employers can confirm that their state has auto-extended the expiration date
of state IDs and driver’s licenses by checking the state Motor Vehicle Administration or Department of
Motor Vehicles’ website. For extended documents, the employee is not required to later present a valid
unexpired List B document.

E-Verify participating employers should use the employee’s expired List B document number from
Section 2 of the Form I-9 to create an E-Verify case as usual within three days of the date of hire.
Within 90 days after termination of this temporary policy, employees must present their employer with a
valid unexpired document to replace the expired document presented when they were initially hired.
Of note, it is best if the employee can present the replacement of the actual document that was expired,
but if necessary, the employee may choose to present a different List A or List B document or
documents and record the new document information in the Additional Information Field.
The temporary policy took effect May 1, 2020 and the date of its termination has not been released.
Read about the temporary policy and List B identity documents
Updated COBRA Notices

On May 1, 2020, the U.S. Department of Labor released updated Consolidated Omnibus Budget
Reconciliation Act (COBRA) continuation coverage notices (model general notice and the model
election notice) to clarify the interaction between Medicare and COBRA for qualified beneficiaries. Plan
administrators may use these model notices to notify plan participants and beneficiaries of their rights
under COBRA and qualified beneficiaries of their rights to elect COBRA. The revised model notices
provide additional information to address COBRA’s interaction with Medicare. The model notices
explain that there may be advantages to enrolling in Medicare before, or instead of, electing COBRA.
The revisions also highlight that if an individual is eligible for both COBRA and Medicare, electing
COBRA coverage may impact enrollment in Medicare as well as certain out-of-pocket costs.
COBRA allows employees (and their families) who would otherwise lose their group health coverage
due to certain life events to continue their same group health coverage. These events include
termination or reduction in hours, death of a covered employee, divorce or legal separation, Medicare
entitlement and loss of dependent status. COBRA generally lasts for 18 months, but, in some cases,
can last up to 36 months.

Get the updated model notices, read the press release, and review FAQs.
COVID-19 and Federal WARN Act
In May 2020, the U.S. Department of Labor released Worker Adjustment and Retraining Notification
(WARN) Act COVID-19 frequently asked questions to answer employer and employee questions
regarding WARN Act responsibilities and protections during the COVID-19 pandemic. The WARN Act
requires employers with 100 or more full-time employees (excluding those on the job for fewer than six
months) to provide at least 60 calendar days’ advance written notice of a worksite closing affecting 50
or more employees, or a mass layoff affecting at least 50 employees and one-third of the worksite’s
total workforce, or 500 or more employees at a single site of employment during any 90-day period.
However, not all workforce dislocations require a 60-day notice. The act makes certain exceptions to
the requirements when employers can show that layoffs or worksite closings occur due to faltering
companies, unforeseen business circumstances, and natural disasters. In such instances, the WARN
Act requires employers to provide as much notice to their employees as possible.
Read the FAQs and about the act
State Compliance Update
HELP Rules Updated
On April 27, 2020, the Colorado Health Emergency Leave with Pay (HELP) rules were updated for the
third time to expand coverage:
• To include retail establishments, real estate sales and leasing, offices and office work, elective
health services, and various listed personal care services (beauty, spa, and others);
• To include either flu-like or other respiratory illness symptoms;
• To include quarantine or isolation instructions from either a health care provider or an
authorized government official; and
• From four days’ full pay to two weeks (up to 80 hours) at two-thirds pay;

The HELP rules require employers in the following industries to provide up to two weeks of sick leave,
at two-thirds pay, to employees with flu-like or other respiratory illness symptoms who are being tested
for coronavirus COVID-19 or are under instructions to quarantine or isolate due to a risk of having
COVID-19:
• Leisure and hospitality
• Retail stores (as of April 27, 2020; those retail stores that sell groceries were covered as of
March 26, 2020)
• Real estate sales and leasing (as of April 27, 2020)
• Offices and office work (as of April 27, 2020)
• Elective medical, dental, and health services (as of April 27, 2020)
• Personal care services (defined as hair, beauty, spas, massage, tattoos, pet care, or
substantially similar services) (as of April 27, 2020)
• Food and beverage manufacturing (as of April 3, 2020)
• Food services
• Childcare
• Education, including transportation, food service, and related work with educational
establishments
• Home health, if working with elderly, disabled, ill, or otherwise high-risk individuals
• Nursing homes
• Community living facilities
Workers are covered by the HELP rules regardless of their pay rate or method (hourly, weekly, piece
rate). Additionally, the daily pay during leave is either their established daily rate or, if their pay
fluctuates, their average daily pay for the past month.
The updated rules took effect on April 27, 2020, and are effective for 30 days, or longer if the governordeclared
state of emergency continues.
Read the HELP rules and updates
Compliance Calendar

May
Nothing to report for now…
June
Nothing to report for now…
July
7/31 – Summary of Material Modification (SMM) Deadline for changes to 2019 calendar year plans
7/31 – Form 941 Filing Deadline (second quarter)
7/31 – Form 5500 Filing Deadline (calendar year plans)
7/31 – PCORI Fee Deadline

FOR PDF WITH LINKS TO ARTICLES CONTACT  MEMBER LIGHTHOUSE RESOURCE SERVICES AT : [email protected]

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.

Update on Colorado Health Emergency Leave with Pay

Safer at Home Order and How Businesses Can Implement

by WCCA Member Lighthouse HR Support

THE LEGAL STUFF

With the new Safer at Home (read here) order in place, Coloradans phase into a new normal for reopening our economy. But what does the order actually allow businesses to implement?
Effective Monday, April 27, 2020 and set to Expire May 27, 2020 (unless expanded)
• Vulnerable populations should continue to stay at home unless absolutely necessary.
• All others should continue to stay at home as much as possible.
• Some restrictions lessened for some industries:
o Retail businesses may open for curbside delivery much like restaurants have been doing.
o Real estate agents may schedule home showings.
o Many voluntary and elective medical, dental, veterinary, etc., surgeries/procedures may resume as long as the facilities adhere to required safety protocols (Public Health Order 2020 045).
Effective Monday, May 1, 2020
• As long as retail businesses follow best practices, they may open publically in phases.
• Following the same best practices, personal services may open as well.
Effective Monday, May 4, 2020
• Other companies may open offices with 50% of staff returning to the physical location.
o Must implement procedures to protect the health and safety of employees.
o Allow employees to continue working remotely if possible.
• Childcare facilities may reopen if they follow Safer at Home requirements.
Of course, individual counties may implement various required guidelines that exceed the requirements in this PHO. In addition, if a county wishes to implement a more lenient list of requirements, they must submit documentation that the county declined in the number of COVID-19 infections for a minimum of 14 consecutive days along with an application to the Colorado Department of Health and Environment. Further, they must submit a written suppression plan for COVID-19 approved by the local public health authority, all hospitals falling within the jurisdiction, and all elected officials.

HOW DO WE RETURN TO WORK

Now that the Stay at Home Order is becoming the Safer at Home guideline, how do we return to some form of normalcy? The following offers guidance on how to return to the workplace and re-open our businesses from a human resource point of view.
Now is the time to examine the future of business
• Take this opportunity to examine your business services and structure:
o Organizational Chart – Is this the time to streamline positions or adjust job descriptions?
o Job Descriptions – creating and/or revising job descriptions in preparation for the Equal
Pay for Equal Work Act (click
here) effective January 1, 2021 for all private employers with at least one employee.
o Review or establish wage scales in preparation for the Equal pay for Equal Work Act.
• Determine what you have learned and where are your gaps.
o Update outdated policies, processes and procedures.
o Streamline communication efforts – do you need to reply to all?
o Systems needing updating or replacement – do the maintenance fees and replacement costs create more liability than a new system?
o New ways to collaborate.
o Look at essential meetings and cut the rest.
• Develop strategic plans to re-open your business.
o Comply with all local, state, and federal requirements regarding regulations, public health orders, etc.
o Strategically determine how to open in phases based on projected customer needs, availability of resources, logistics, etc.
o Define what resources will be needed for each phase:
 Finances
 Workforce
 Materials
Workforce management requires specific considerations
• When bringing employees back into the workplace, consider screening that will protect your workplace, assets, and customers.
o Checking Temperatures: Under normal circumstances, employers may not request or require that employees check their temperature or succumb to having their temperature checked prior to working. However, with a proper policy, employers may consider this action due to COVID-19. But the questions and reasons must be based on COVID-19 symptoms.
o Background Screening: When an employee is off of work for an extended period of time, it might prove wise to complete a background screen prior to bringing them back on the workforce which should be spelled out in a recall from furlough or rehire policy.
• With all of the new paid leave laws and grants for small businesses, along with the OSHA tracking requirements, etc., companies must determine how to track certain things:
o COVID-19 related absences v. all others (what may you ask?)
o Payments under Emergency Paid Sick Leave – Families First Coronavirus Response Act (click here ) v. other leaves.
o Payroll expenses for the Payroll Protection Program (PPP) – CARES Act (click here).
o Separate bank account for PPP funds (assists with tracking the 75% requirement to apply for loan forgiveness).
• Due to certain employee relation circumstances, employers must understand the legal considerations for the following:
o Dealing with staff that do not want to return to the workplace.
 Review each one on a case-by-case basis to determine the reasons.
 Investigate what barriers they may have from fear to earning more on unemployment with the additional federal benefits to child care concerns.
 Understand how to address OSHA Safe Workplace requirements.
 Make sure you address reasonable accommodation requests under the Americans with Disabilities Act.
 Decide what employee concerns falls under the protection from the National Labor Relations Board.
• When bringing staff back from furloughs or layoffs, employers must follow certain criteria:
o Furloughs: employees whose hours were reduced or eliminated but remained on payroll.
o Layoffs: employees who separated from the company and were removed from payroll.
o If you do not plan on bringing all staff back, you must determine defensible criteria as to which ones you will reinstate (furloughed or laid off), such as:
 Seniority
 Performance based
 KSAOs in accordance with job descriptions
o Review policies regarding new hire practices and re-hire procedures.
Review recruitment and retention activities
• Not all employees may be available to return to the workplace due to personal reasons or they may have accepted another job. Many employers will be searching the same applicant pool and must be creative in their recruitment processes.
o Streamline hiring processes – cut out unnecessary steps.
 People will accept jobs quickly; don’t be left out due to long, redundant processes.
 You cannot over communicate – stay in contact with applicants to ensure they know your interest.
o Develop your recruitment processes to enhance succession planning.
o Look internally to determine if current employees are capable of more with some professional development.
o Determine the need for contingency staff options while searching for top talent instead of making desperate hiring choices.
 Review recent retirees for temporary assignments and training new employees.
 Temporary staffing agencies such as temp assignments or travel staff.
o Utilize LinkedIn and FaceBook for recruitment efforts (this does not mean viewing applicants’ FaceBook pages).
 Involve your management staff and others in posting open positions on LinkedIn and FaceBook.
 Consider using LinkedIn professional services to comb through resumes, etc.
o Contact past applicants that expressed interests in jobs. They might be looking again.
• We all know retaining employees decreases hiring costs and keeps talent and knowledge in the workplace.
o Analyze your onboarding processes to enhance culture. Implement onboarding activities to increase the engagement and commitment from new hires.
o Create communication structures and transparency policies and practices to keep employees informed on business growth, activities, and even struggles. Often our current employees, the ones closest to the problem, create sensible solutions.
• Through this pandemic, we learned how important it is to support our employees. After all, if you take care of them, they will take care of your customers.
o Invest in Employee Assistance Programs if you do not currently have one.
o Review your health insurance benefits for mental health or counseling resources.
o Educate employees on what is available to them.
o Continuously stay in contact with employees, including your remote staff.
Safeguard the work environment that employees are returning to
• Take this opportunity to update cleaning procedures based on CDC recommendations (click here).
• Be aware of how the environment allows Social Distancing. Can desks be rearranged? Can you stagger shifts?
• Create handwashing breaks for employees outside of their 10 minute paid breaks and meal breaks.
• Offer or require masks, gloves, etc., as appropriate with an established policy.
• Allow employees to wear masks, gloves, etc. if they request to.
Take the time to establish or update policies and procedures regarding the workplace
• Infection Disease or Communicable Disease
• Recalling furlough or laid off employees
• Temperature Checking
• Wearing Personal Protective Equipment
• Background Screening
• Working Remotely – Telecommuting
• Emergency Preparedness Plan reviews
o Payroll continuation
o Accounts Payable continuation
o Layoff v. Furlough
Remember, whatever boat you are in, you are not alone. As we learn from this pandemic crisis, we need to remain flexible and learn together. Understand mistakes will happen and we will grow from them. Employees are people and this pandemic experience is different for everyone. Be mindful.
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

COMPS information provided by Lighthouse HR Support

While we have focused on COVID-19 for good reason, there are OTHER legislative changes we need to keep our eye on – 2020 Vision!

Colorado Overtime & Minimum Pay Standards (COMPS) became effective March 16, 2020. With this new wage order comes some unique challenges during the COVID-19 crisis. Here are a couple of items causing particular concern:

Hourly employees are entitled to a 10 minute paid break for every four hours worked. Employers need to make sure that remote hourly workers are logging their 10 minute paid breaks.
• The break must be scheduled in the middle of the four hour period as much as practical.
• Employers will be wise to track the 10 minute breaks taken by the employee.
• If the employee is not permitted or authorized to take the 10 minute paid break, they must be compensated for this time at the end of the shift.

Hourly employees are entitled to paid time for travel performed for the employer outside of normal “to” and “from” home time. Employers need to have a mechanism of tracking work travel time for remote hourly workers, even amidst the “Stay at Home” orders for critical business needs.
• Any time an hourly employee travels for business purposes, they must be compensated this time with an exception of normal “to” and “from” work and home.
• This is in addition to the IRS mileage reimbursement for use of personal vehicles.
Employers are required to post the COMPS poster or distribute to employees. Employers need to ensure all remote workers, including exempt employees, receive a COMPS poster.
• Employers must display the COMPS poster where employees can easily read it during the workday.
• If physical posting is impractical, employers must provide copies of this Poster or the COMPS Order to each employee in the first month of work.
• If employees have limited English language ability and speak other languages, then employers must post the COMPS poster in that language.

Please click hereto read the entire COMPS order.
Please click hereto access the COMPS poster required for posting.

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.

Coronavirus Aid, Relief, and Economic Security Act (CARES Act)

Coronavirus Aid, Relief, and Economic Security Act (CARES Act) On Friday, March 27, the President signed the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). The new law is a $2 trillion economic stimulus package designed to repair the economic damage caused by COVID-19 and provide additional protection to individuals and businesses who may lose income due to the pandemic. While most of the act pertains to direct payments and loans, there are some sections that affect employers. Providing Alternatives to Closure and Layoffs The CARES Act gives employers the following options and benefits, which may allow them to stay open and keep more people employed:
• Small businesses may be eligible for emergency grants of up to $10,000 to cover immediate operating costs.
• The Small Business Administration (SBA) may provide loans of up to $10 million per business; any portion of that spent to pay employees, keep workers on payroll, or pay for rent, mortgages, or existing debt could be forgiven, provided workers remain employed through the end of June.
• Small businesses with existing SBA loans may have up to six months of payments waived.
• Businesses who have experienced a decline in gross receipts of 50% as compared to the same quarter of 2019 or who have been fully or partially shut down by order may be eligible to receive a refundable tax credit for 50% of qualified employee wages up to $10,000 per employee. This is unrelated to the dollar-for-dollar payroll tax credit that can be taken for FFCRA leaves.
• Businesses may defer payment of employer payroll taxes imposed between the enactment of this law and December 31, 2020 with half of the deferred taxes due by December 31, 2021 and the rest due by December 31, 2022. This is unrelated to the dollar-for-dollar payroll tax credit that can be taken for FFCRA leaves.
We are unable to advise on these topics as they are outside the scope of our expertise. We encourage you to follow the IRS Coronavirus Tax Relief page and the SBA Coronavirus Loan Resources page, as well as consult with your tax professional or financial advisor. Detailed guidance on how to access these financial resources should be coming soon from those sources.
Impact on Unemployment Insurance The act expands unemployment benefits by 13 weeks and adds $600 to the weekly amount an individual would usually receive. While these unemployment benefits are generous, employers should still consider their options and incentives under the CARES Act mentioned above before making decisions about reduced hours, furloughs, or layoffs. Employees who experience reduced hours, furloughs, or layoffs should be encouraged to file for unemployment insurance as soon as possible. We recommend that both employers and employees visit their state’s unemployment insurance department website and track local and state news, as departments across the country are updating their rules to facilitate displaced workers during this time.
Enforcement of FFCRA
The DOL will not bring enforcement actions against employers for violations of the FFCRA prior to April 17, 2020, provided that the employer has made reasonable, good faith efforts to comply with the Act. You can read more about the brief non-enforcement period here.
New Guidance from the DOL on Administering FFCRA Leaves We strongly suggest that employers read through the entire Question and Answers document prior to Wednesday, so they have an understanding of how the leaves work. The following are some highlights from the updated guidance:
• These leaves are not available to employees with reduced hours, furloughed employees, or employees’ whose workplaces are closed. See questions 23-28.
• These leaves are not available to employees whose workplaces are closed due to a federal, state, or local shelter-in-place or stay-at-home orders, or due to business slowdowns. See questions 23 and 27.
• These leaves (and payroll tax credit) are not retroactive. Employees are not entitled to pay under these leaves if they were absent or out of work (for any reasons) prior to April 1. See question 13.
• Both emergency paid sick leave (EPSL) and emergency Family and Medical Leave (EFMLA) can be taken on an intermittent basis in certain situations. See Questions 20-22 for explanations about when intermittent leave is allowed.
• Employees may not be required to use other forms of paid leave prior to or concurrently with EPSL or EFMLA. See questions 32 and 33.
Employers should keep documentation to show that employees who received leave were actually in need of leave. The documentation requirements will be outlined in soon-to-be-released IRS guidance. See Questions 15 and 16.
Other Considerations and Regulations
Filing Deadline and Federal Tax Payments Extended to July 15, 2020
On March 21, 2020, the Treasury Department and Internal Revenue Service announced that the federal income tax filing due date is automatically extended from April 15, 2020, to July 15, 2020. Taxpayers may also defer federal income tax payments due on April 15, 2020, to July 15, 2020, without penalties and interest, regardless of the amount owed. This deferment applies to all taxpayers, including individuals, corporations and other non-corporate tax filers as well as those who pay self-employment tax. Taxpayers do not need to file any additional forms or call the IRS to qualify for this automatic federal tax filing and payment relief.
Read the announcement, review related FAQs, and read other COVID-19 related news
FFCRA Payroll Tax Credit — Easing the Burden for Employers
On Friday, March 20, the U.S. Treasury, IRS, and U.S. Department of Labor announced their plans for making the paid leave provisions in the Families First Coronavirus Response Act (FFCRA) less burdensome for small businesses. Key points include:
• To take immediate advantage of the paid leave credits, businesses can retain and access funds that they would otherwise pay to the IRS in payroll taxes. If those amounts are not sufficient to cover the cost of paid leave, employers can seek an expedited advance from the IRS by submitting a streamlined claim form that will be released next week.
• The Department of Labor will release “simple and clear” criteria for businesses with fewer than 50 employees to apply for exemptions from the leave provisions related to school and childcare closures; and
• There will be a 30-day non-enforcement period for businesses making a reasonable effort.
We know that for many of our clients, business slowdowns related to the spread of COVID-19 have made it hard to imagine how they could bear any additional expenses. We encourage anyone with these concerns to read the linked announcement carefully.
The full announcement can be found here: Treasury, IRS, and Labor Announcement on FFCRA Implementation.
Including the information in the link above, this is all we currently know about the payroll tax credit under the FFCRA and how to access or administer it. We will update Comply as soon as new information or guidance is available. You can learn more about the details of the leaves (who is covered, what it’s for, duration, etc.) in the materials on this page.
COVID-19 and Flexibility in Mandatory, In-Person Signatures
Form I-9
On March 20, 2020, the Department of Homeland Security announced that effective immediately, the physical presence requirement of the Employment Eligibility Verification, Form I-9, has been temporarily suspended for employers and workplaces that are operating remotely due to COVID-19 related precautions. In other words, employers with employees taking physical proximity precautions due to COVID-19 (and operating remotely) are not required to review the employee’s identity and employment authorization documents in the employee’s physical presence.
The physical presence requirement that was temporarily suspended mandated that employers, or an authorized representative, physically examine, in the employee’s physical presence, the unexpired document(s) the employee presents from the Lists of Acceptable Documents to complete the Documents fields in Form I-9’s Section 2.
Employers must also be aware of the following regarding the temporary suspension:
• If there are employees physically present at a work location, then in-person verification of identity and employment eligibility documentation for Form I-9 continues to be required. However, if newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate this on a case-by-case basis.
• Employers may designate an authorized representative to act on their behalf to complete Section 2 and may be any person the employer designates to complete and sign Form I-9 on their behalf. However, employers are liable for any violations in connection with the form or the verification process, including any violations in connection with the form or the verification process, including any violations of the employer sanctions laws committed by the person designated to act on the employer’s behalf.
Form I-9, Section 2 Documents Must Be Inspected Remotely
Employers must still inspect the Section 2 documents but may do so remotely (for instance, over video link, fax or email). Employers must also obtain, inspect, and retain copies of the documents they inspect, within three business days so as to complete Section 2. Employers are also directed to:
• Enter “COVID-19” as the reason for the physical inspection delay in the additional information field of Section 2 once physical inspection takes place after normal operations resume; and
• Add “documents physically examined,” with the date of inspection to either the additional information field of Section 2 or to section 3 (as appropriate) once the documents have been physically inspected.
Employers may implement remote document inspections until May 19, 2020 (“up to 60 days from the date of the announcement”) or within three business days after the termination of the National Emergency, whichever comes first. Importantly, employers who implement remote onboarding and telework policies must provide documentation for each employee. This burden rests solely with the employers.
In-Person Verification Required After Normal Operations Resume
Once normal operations resume, all employees who were onboarded using remote verification must report to their employer within three business days for in-person verification of identity and employment eligibility documentation they presented for their Form I-9. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 additional information field or to section 3, as appropriate.
Any audit of subsequent Forms I-9 would use the “in-person completed date” as a starting point for these employees only.
Extension on Inspections
Effective March 19, 2020, any employers who were served Notice of Inspections (NOI) by DHS during the month of March 2020 and have not already responded will be granted an automatic extension for 60 days from the effective date. At the end of the 60-day extension period, DHS will determine if an additional extension will be granted.
Employers are required to monitor the DHS and ICE websites for additional updates regarding when the extensions will be terminated, and normal operations will resume.
USCIS and Benefits Forms
On March 20, 2020, the U.S. Citizenship and Immigration Services (USCIS) announced that it will accept all benefit forms and documents with reproduced original signatures, including the Form I-129, Petition for Nonimmigrant Worker, for submissions dated March 21, 2020, and beyond. This flexibility is in response to the ongoing COVID-19 National Emergency. This means that a document may be scanned, faxed, photocopied, or similarly reproduced provided that the copy must be of an original document containing an original handwritten signature, unless otherwise specified.
For forms that require an original “wet” signature, per form instructions, USCIS will accept electronically reproduced original signatures for the duration of the National Emergency. This temporary change only applies to signatures. All other form instructions should be followed when completing a form. Individuals or entities that submit documents bearing an electronically reproduced original signature must also retain copies of the original documents containing the “wet” signature. USCIS may, at any time, request the original documents, which if not produced, could negatively impact the adjudication of the immigration benefit.
SBA Disaster Assistance in Response to COVID-19
The U.S. Small Business Administration (SBA) is offering designated states and territories low-interest federal disaster loans for working capital to small businesses suffering substantial economic injury as a result of the
Coronavirus (COVID-19). Upon a request received from a state’s or territory’s Governor, SBA will issue under its own authority, as provided by the Coronavirus Preparedness and Response Supplemental Appropriations Act that was recently signed by the President, an Economic Injury Disaster Loan declaration.
Read more on the SBA’s website
IRS, Coronavirus (COVID-19), and High-Deductible Health Plans
On March 11, 2020, the Internal Revenue Service (IRS) released Notice 2020-15 for high deductible health plans and expenses related to 2019 novel coronavirus (COVID-19) stating that, until further guidance is released, a health plan that otherwise satisfies the requirements of a high deductible health plan (HDHP) under I.R.C. § 223(c)(2)(A) will not fail to be an HDHP merely because it provides health benefits associated with testing for and treatment of COVID-19 without a deductible, or with a deductible below the minimum deductible (self only or family) for an HDHP. Therefore, an individual covered by the HDHP will not be disqualified from being an eligible individual under § 223(c)(1) who may make tax-favored contributions to a health savings account (HSA).
This does not modify previous guidance with respect to the requirements of an HDHP in any manner other than with respect to the relief for testing for and treatment of COVID-19. Vaccinations continue to be considered preventive care under § 223(c)(2)(C) for purposes of determining whether a health plan is an HDHP. Rather, the notice provides flexibility to HDHPs to provide health benefits for testing and treatment of COVID-19 without application of a deductible or cost sharing. Individuals participating in HDHPs or any other type of health plan should consult their particular health plan regarding the health benefits for testing and treatment of COVID-19 provided by the plan, including the potential application of any deductible or cost sharing.
Read Notice 2020-15
CDC, OSHA, and Coronavirus
In response to the COVID-19 (coronavirus) outbreak, the U.S. Centers for Disease Control (CDC) issued: • Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease, providing recommended workplace strategies for employers and guidance on how to decrease COVID-19 spread, how to respond to outbreaks, and additional resources; and • Public Health Response to the Coronavirus Disease 2019 Outbreak, providing a chronological timeline and summary of the virus, cases reported in the United States, and the agency’s public health response to the illness.
The CDC has also created the following posters for download:
• What you need to know (English, Spanish, Chinese)
• What to do if you are sick (English, Spanish, Chinese)
• Stop the spread of germs (English, Spanish, Chinese)
• Symptoms of coronavirus (English, Spanish)
Additionally, the U.S. Occupational Safety and Health Administration (OSHA) has created a COVID-19 website for workers and employers addressing the disease, providing guidance, and other resources for preventing exposure to and infection with the virus. We recommend that employers review the CDC and OSHA websites frequently, as the COVID-19 outbreak continues to develop.
Read more on the CDC
HIPAA and COVID-19
In February 2020, the Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services (HHS) released a bulletin to ensure that Heath Insurance Portability and Accountability Act (HIPAA) covered entities, and their business associates, are aware of the ways that patient information may be shared under the HIPAA Privacy Rule in an outbreak of infectious disease or other emergency situation. The bulletin also reminds covered entities that the protections of the Privacy Rule are not set aside during an emergency and discusses the following HIPAA topics:
• Sharing patient information
o Treatment.
o Public health activities.
o Disclosures to family, friends, and others involved in an individual’s care and for notification.
o Disclosures to prevent a serious and imminent threat.
o Disclosure to the media or others not involved in the care of the patient/notification.
o Minimum necessary (for most disclosures, a covered entity must make reasonable efforts to limit the information disclosed to that which is the “minimum necessary” to accomplish the purpose).
• Safeguarding patient information.
• HIPAA’s application to only covered entities and business associates.
The bulletin also provides links to the following resources: • HIPAA and Public Health • HIPAA and Emergency Preparedness, Planning, and Response • HIPAA Privacy Rule • How federal civil rights laws apply in an emergency
Review the bulletin
DOL Wage and Hour Opinion Letters Addressing Regular Rate of Pay Under the FLSA
On March 26, 2020, the U.S. Department of Labor (DOL) announced the following three new opinion letters addressing compliance issues related to the Fair Labor Standards Act (FLSA):
• Excludability of longevity payments from the regular rate of pay. (FLSA2020-3)
o This opinion letter answers whether payments made by a city, under an official city resolution, to full-time employees at Christmas which were based on their length of service (longevity payments) must be included in the employees’ regular rate when calculating overtime pay under the Fair Labor Standards Act (FLSA). The determination was, based on the specific facts, that these longevity payments are not excludable as payments in the nature of gifts and must be included in the employee’s regular rate of pay.
• Excludability of referral bonuses from the regular rate of pay. (FLSA2020-4)
o This opinion letter answers whether referral bonuses (when a current employee refers an applicant for hire and the applicant gets hired) paid to current employees, in two equal installments and with different terms for each installment, must be included in their regular rate when calculating overtime pay under the FLSA. The first installment would be paid to the referring employee when the employer hired the employee they referred. The second installment would be paid to the referring employee at the one-year employment anniversary of the employee they referred if the referring employee is still actively employed. The determination was that, based on the specific facts, the first installment of the referral bonus is not included in the employee’s regular rate (is not remuneration for employment). But whether the second installment is remuneration depends on facts not presented. If the payment of the second installment is not contractually enforceable, then it may be excluded from the
employee’s regular rate. If the payment of the second installment is contractually enforceable, then it must be included in the employee’s regular rate.
• Excludability of an employer’s contributions to a group term-life insurance policy from the regular rate of pay. (FLSA2020-5)
o The opinion letter answers specifically whether the regular rate for a non-exempt employee under the FLSA must include amounts that the Internal Revenue Code (IRC) requires be included in the employee’s taxable gross income when the employer contributes to group-term life insurance coverage of over $50,000 for the employee. The determination was that, based on the specific facts, it is not necessary to separately evaluate income imputed to an employee for an employer’s cost of providing group-term life insurance coverage in excess of $50,000. This is because whether an employer’s contributions to a benefit plan satisfy statutory or regulatory requirements are the key to determine whether the contributions are included in or excludable from an employee’s regular rate. The IRC’s designation of such amounts as taxable income has no impact on the exclusion of these amounts from an employee’s regular rate under the FLSA.
These opinion letters clarify the DOL’s Final Rule on FLSA regular rate requirements, because employers were uncertain how perks and benefits play when calculating the regular rate of pay. FLSA regular rate requirements define what forms of payment employers include and exclude in the FLSA’s “time and one-half” calculation when determining overtime rates.
An opinion letter is an official, written opinion by the DOL’s Wage and Hour Division on how a particular law applies in specific circumstances presented by the person or entity that requested the letter.
Read the announcement
Disclaimer:
Lighthouse HR Support (LHRS) provides practical human resources 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 resources 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.
The above information was obtained from ThinkHR.

SOCIAL DISTANCING ON WORK SITES NEEDED

It has come to everyone’s attention that with the COVID -19 crisis more regulations are constantly being updated and most construction is still deemed essential.  Several associations and organizations are urging  ALL WORKERS to continue observing all CDC Guidleines and CHANGE YOUR SOCIAL COMMUNICATIONS on the job site.   There is a chance that if work sites are seen with close personal communication, “tailgating” or casually conversing under 6′ distance,  or any other form of everyday social interaction that seems harmless but does not follow the social distancing guidelines, it could affect how contractors are able to do business during this crisis.

LET”S WORK TOGETHER!

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.

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.