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.

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