December 2020

Cal/OSHA Adopts Emergency Temporary COVID-19 Standard

On November 30, Cal/OSHA adopted an emergency temporary COVID-19 standard that takes effect immediately and expires October 2, 2021.

Under the new regulations, employers must have a written COVID-19 Prevention Plan that addresses the following:

  • System for communicating information to employees about COVID-19 prevention procedures, testing, symptoms, and illnesses, including a system for employees to report exposures without fear of retaliation.
  • Identification and evaluation of hazards — screening employees for symptoms, identifying workplace conditions and practices that could result in potential exposure.
  • Investigating and responding to cases in the workplace — responding immediately to potential exposures by following steps to determine who may have been exposed, providing notice within one business day about potential exposures, and offering testing to workers who may have been exposed.
  • Correcting COVID-19 hazards — including correcting unsafe conditions and work practices as well as providing effective training and instruction.
  • Physical distancing — Implementing procedures to ensure workers stay at least six feet apart from others if possible.
  • Face coverings — Providing face coverings and ensuring they are worn.
  • Adopting site-specific strategies such as changes to the workplace and work schedules and providing personal protective equipment (PPE) to reduce exposure to the virus.
  • Positive COVID-19 case and illness recording requirements and making the COVID-19 Prevention Plan accessible to employees and employee representatives.
  • Removing both COVID-19 exposed workers and COVID-19 positive workers from the workplace with measures to protect pay and benefits.
  • Criteria for employees to return to work after recovering from COVID-19.
  • Requirements for testing and notifying public health departments of workplace outbreaks (three or more cases in a workplace in a 14-day period) and major outbreaks (20 or more cases within a 30-day period).
  • Specific requirements for infection prevention in employer-provided housing and transportation to and from work.

MIOSHA Allows COVID-19 Inspections to be Added to Most Types of Inspections

The Michigan Occupational Safety and Health Administration (MIOSHA) has issued an enforcement plan for its COVID-19 temporary standard that allows for COVID-19 inspections to be added to most types of inspections.

These inspections would be programmed partial inspections and unprogrammed partial inspections not related to COVID-19, such as non-COVID-19 complaint inspections, non-COVID-19 re-inspections, and non-COVID-19 follow-up inspections. COVID-19 would be covered because the hazard is in plain view, and MIOSHA requires the scope of a partial inspection to be expanded to address any potentially serious hazard in plain view or discovered during the inspection process. MIOSHA says its inspectors will be able to identify COVID-19 as a “plain view” hazard by looking at, for example, whether employees or customers are wearing face coverings, whether there are posted signs to ask sick individuals to not enter, and whether signs are posted to require health screening or face coverings.

MIOSHA says the enforcement plan is intended to effectively deal with large numbers of COVID-19 complaints and referrals, quickly address health hazards in the workplace, and protect the health of MIOSHA compliance officers who can be exposed when they do on-site inspections.

MIOSHA to Focus Attention on Office Workplaces, Remote Work Policies

As COVID-19 cases rise, the Michigan Occupational Safety and Health Administration (MIOSHA) has launched a State Emphasis Program (SEP) focused on office workplaces and remote work policies. Under MIOSHA’s COVID-19 Emergency Rules, employers are required to create a policy prohibiting in-person work for employees to the extent that their work activities can feasibly be completed remotely. MIOSHA says it will conduct inspections at workplaces with traditional office settings to review how rules are being followed and to enhance compliance. Citations and penalties up to $7,000 may be issued for non-compliance.

The Emergency Rules also require businesses that resume in-person work to:

  • have a written COVID-19 preparedness and response plan, and
  • provide training to employees that covers, at a minimum:
    • workplace infection-control practices,
    • proper use of personal protection equipment (PPE),
    • steps employees must take to notify the business of any symptoms of COVID-19 or a suspected or confirmed diagnosis of COVID-19, and
    • how to report unsafe working conditions.

Oregon OSHA Adopts Temporary COVID-19 Rule for all Workplaces

Oregon OSHA has adopted a temporary rule requiring all employers to carry out risk-reducing measures to help prevent the spread of COVID-19 in the workplace. The rule takes effect November 16, with certain parts phased in, and is expected to remain in effect until May 4, 2021.

The rule is a continuation of the guidance produced by the Oregon Health Authority and enforced in the workplace by Oregon OSHA, including physical distancing, use of face coverings, and sanitation. It includes an appendix that contains provisions for specific industries and workplace activities, with more measures for exceptionally high-risk jobs.

The rule includes requirements for:

  • Physical distancing;
  • Masks, face-covering, or face shields;
  • Ventilation;
  • Exposure risk assessment;
  • Infection control plan;
  • Information and training; and
  • Notification, testing, and medical removal.

Oregon OSHA is developing educational resources to help employers and workers understand and apply the requirements.

OSHA Issues Guidance on Frequently Cited Standards Related to COVID-19 Inspections

OSHA has issued guidance and a bulletin to help employers understand which standards are most frequently cited during COVID-19-related inspections. To date, the Agency has issued nearly $2.5 million in citations.

The documents address the most frequently cited standards, including respiratory protection, recording and reporting occupational injuries and illnesses, personal protective equipment (PPE), and the General Duty Clause.

The bulletin provides examples of employer requirements, including:

  • Provide a medical evaluation before a worker is fit-tested or uses a respirator.
  • Establish, implement, and update a written respiratory protection program with required worksite-specific procedures.
  • Train workers to safely use respirators and/or other PPE in the workplace, and retrain workers about changes in the workplace that might make previous training obsolete.
  • Store respirators and other PPE properly to protect it from damage, contamination, and, where applicable, deformation of the facepiece and exhalation valve.
  • Keep required records of work-related fatalities, injuries, and illness.

OSHA says the guidance is intended to help employers protect workers and to increase compliance with OSHA’s requirements.

The FFCRA is Set to Expire; What Does That Mean for Employers?

Congress has shown no sign that it will extend the employee leave provisions of the Families First Coronavirus Response Act (FFCRA), so it is set to expire on December 31, 2020. As such, covered employers have a few details to consider. Some of those considerations include the following:

  • They may simply choose to stop any current paid leave employees are taking and deny any related leave requests as of January 1, as the obligation to provide that paid leave will end.
  • Allow employees currently on leave to continue taking the rest of the leave.
  • Allow employees who are not currently on leave to take such leave in the future.

Whatever choices employers make, they should communicate them clearly to employees.

Other laws, such as state laws, however, could apply, providing employees with additional protections. Of course, if an employee or family member has a serious health condition (which can include COVID-19), the traditional FMLA could apply.

If an employee’s COVID-19 results in longer-term limitations, the employee could also be protected by the Americans with Disabilities Act (ADA). Providing leave has been seen as a reasonable accommodation under the ADA.

After December 31, employers who do provide paid leave for the FFCRA qualifying reasons will not be able to apply for the tax credits as has been allowed.

The goal of the FFCRA was to help keep the virus out of the workplace, trying to curb the spread. That goal was met, as employees had enough incentive to not go to work when infected or potentially infected. Since the virus is continuing to spread, allowing employees to take leave — particularly paid leave — can continue to help curtail the spread.

An employee may have, for example, taken the 80 hours of emergency paid sick leave earlier this year because she was subject to a quarantine order. Now that same employee may have been exposed and is medically advised to self-quarantine. Since employees are entitled to only one batch of 80 hours of emergency paid sick leave, that employee would not be entitled to more but could risk bringing the virus into the workplace.

Employee screening can only go so far. If an employee needs the pay to get by, she may deny the medical advice to quarantine and go to work. If she has no symptoms, screenings will be fairly ineffective. Some sources indicate that about 40 percent of infected individuals will have no symptoms.

A new administration could provide more leave in the future, but much remains to be seen. Until then, employers need to begin thinking about their next steps.

Paying Employees for Travel, Training Time – DOL Provides Guidance

On November 3, the U.S. Department of Labor (DOL) announced two opinion letters that addressed compliance issues related what counts as paid work time under the Fair Labor Standards Act (FLSA).

The two opinion letters featured different compensation situations as recapped here:

  • Voluntary training programs (FLSA2020-15): This letter addressed whether employees must be paid for time spent attending voluntary training programs. The company in question was a nonprofit hospice care provider with a variety of employees who take continuing education courses — some required for licensing, some not. In the letter, the company presented six different situations in which they sought guidance on whether the employees must be paid for their training time. The DOL’s answers varied depending on all the circumstances described in the letter. Generally, however, the FLSA states that attendance at lectures, meetings, training programs, and similar activities does not need to be counted as working time if: it is outside normal hours, it is voluntary, the training is not job-related, and no other work is performed.
  • Travel time of nonexempt workers (FLSA2020-16): This letter addressed whether employees had to be paid for travel time in three different situations involving construction sites located away from the employer’s principal place of business (both local and remote). It also addressed commuting time. In the letter, a construction company had laborers and foremen (all nonexempt from overtime pay). The DOL’s answers varied depending on all the circumstances described in the letter. For example, the foremen’s travel time between the employer’s principal place of business and the job sites was compensable in each scenario presented in the letter. However, ordinary home-to-work commuting time was not compensable. The laborers’ travel time to and from a local job site was normal commuting time and need not be paid. When laborers were away from home overnight, travel from the hotel to the job site was also considered normal commuting time, and didn’t need to be paid. If, however, the laborers’ travel time cut across their normal work hours, even on a nonwork day, their time was typically compensable.

Although the DOL’s responses in each letter are case-specific, the answers can provide other employers with general guidance when it comes to complying with the FLSA.

What is an opinion letter?

An opinion letter is an official, written opinion by the DOL’s Wage and Hour Division (WHD), which enforces laws, such as the FLSA. These letters explain how a particular law applies in specific circumstances presented by a person or an entity (such as a business or an employer) that requested the letter. The public may submit requests for opinion letters to WHD to obtain an opinion or to determine whether existing guidance already addresses their questions. The WHD uses its discretion in determining whether and how to respond to each request. With these recent two letters, the WHD has issued 67 opinion letters since January 20, 2017.

Employers (and Employees) Get More Access to Health Care Prices With Final Rule

On October 29, the federal Department of Health and Human Services (HHS), the Department of Labor, and the Department of the Treasury (the Departments) released the Transparency in Coverage final rule.

This rule aims to put health care price information in the hands of consumers (such as employers and employees) to help provide the critical information needed to make informed health care decisions.

Employers and employees will be able to:

  • Evaluate health care options and to make cost-conscious decisions;
  • Reduce potential surprises in relation to out-of-pocket costs for health care services;
  • Create a competitive market for the same health care items and services; and
  • Put pressure on health care prices, which, in turn, potentially lowers overall health care costs.

The requirements in the final rule strive to clear up the murky waters of health care pricing, with the goal of bringing greater competition to the private health care industry. This rule will require most group health plans to disclose price and cost-sharing information to participants, beneficiaries, and enrollees.

The Departments are finalizing a requirement to give consumers (e.g., employers) real-time, personalized access to cost-sharing information, including an estimate of their cost-sharing liability, through an internet-based self-service tool. Consumers will be able to shop and compare costs between specific providers before receiving care.

Through this final rule, health plans will be required to post their in-network negotiated rates, billed charges, and allowed amounts paid for out-of-network providers, and the negotiated rate and historical net price for prescription drugs on a public website.

The HHS will also allow issuers (like health insurance companies) that empower and incentivize consumers (like employers) through plans that include provisions encouraging consumers to shop for services from lower-cost, higher-value providers and that share the resulting savings with consumers.

Common Errors to Avoid When Claiming Tax Credits

If you are like many employers who are filing Form 941, Employer's Quarterly Federal Tax Return, and are claiming an employer tax credit, you should read the instructions carefully and take your time when completing the form to avoid mistakes.

Using a reputable tax preparer, including certified public accountants, enrolled agents, or other knowledgeable tax professionals, can also help avoid errors. Mistakes can result in a processing delay or a balance due notice, which could mean a delay or require filing an amended return.

Here are some common mistakes to avoid when completing Form 941:

  • Reporting advances requested instead of the advance payments of credits received. If you haven't received the advance payment of credit you requested, it should not be reported on your 941.
  • Incorrectly reconciling the advance payment of the credit requested and received. If you have received the advance payment requested, you must reconcile it on Form 941 by reporting the advance payments received online 13f and claiming the credits you’re eligible for on lines 11b, 11c, 13c, and 13d.
  • Form 7200, Advance Payment of Employer Credits Due to COVID-19, is used to request the advance payment of employer credit. It is not used to claim the credit.
    • If you receive an advance payment of credit but don't report it on Form 941, you may receive a balance due notice.
    • If you receive a balance due notice, you will need to file an amended return using Form 941-X to report the advance payments and claim your eligible credits. If you use third-party payers or reporting agents, you must tell your third-party payer or agent you requested and received an advance payment of credit. These third-party payers and reporting agents should also ask you if you requested and received an advance payment of credit using Form 7200.

You may be one of many businesses that have been severely impacted by COVID-19 and will qualify for two new employer tax credits — the Credit for Sick and Family Leave and the Employee Retention Credit.

You may request tax credits for paid leave you provided under the Families First Coronavirus Response Act (FFCRA) between April 1, 2020, and December 31, 2020. The refundable credit is applied against certain employment taxes on wages paid to all employees. You may reduce federal employment tax deposits in anticipation of the credit.   You may also request an advance of the paid sick and family leave credits for any amounts not covered by the reduction in deposits. The advanced payments will be issued by paper check to employers.

You may also be eligible to claim the employee retention credit, a refundable tax credit equal to 50 percent of up to $10,000 in qualified wages (including health plan expenses), paid after March 12, 2020, and before January 1, 2021. Your business is eligible if your operations have been partially or fully suspended due to governmental orders due to COVID-19 or if it has a significant decline in gross receipts compared to 2019.

PHMSA Adopts Miscellaneous Petitions

On November 25, 2020, the Pipeline and Hazardous Materials Safety Administration (PHMSA) published final rule HM-219C, amending the Hazardous Materials Regulations in response to 24 petitions for rulemaking submitted by the regulated community between February 2015 and March 2018. HM-219C updates clarifies or provides relief from various regulatory requirements without adversely affecting safety.

Voluntary compliance for HM-219C will begin on December 28, 2020, with mandatory compliance beginning on November 26, 2021. In part, the updates to the hazardous materials regulations includes:

  • Harmonizing availability of limited quantity shipping exceptions for more than 100 entries for corrosive materials in the Hazardous Materials Table.
  • Revising § 172.302(b)(2) to allow a minimum height of 12 mm (0.47 inches) for a proper shipping name marked on a portable tank with a capacity of less than 3,785 L (1,000 gallons).
  • Revising § 173.28(c)(1)(i) to allow for regulatory flexibility for cleaning metal drums for reuse and clarifying the existing cleaning standard.
  • Revising § 173.5b to allow for the continued use of portable and mobile refrigerator systems placed into service prior to 1991 that are rated to a minimum service pressure of 250 pounds per square inch (psig). Incorporating by reference updated editions of multiple Compressed Gas Association (CGA) publications into § 171.7.
  • Removing the reference to special provision 103 in § 172.101 from Column (7) for four HMT entries.
  • Revising § 173.308(d)(3) to harmonize with the International Maritime Dangerous Goods (IMDG) Code by removing the requirement for a closed transport container to have the warning mark "WARNING - MAY CONTAIN EXPLOSIVE MIXTURES WITH AIR - KEEP IGNITION SOURCES AWAY WHEN OPENING" when transporting lighters.
  • Revising § 173.31 to prohibit the use of certain rail tank cars for the transportation of PIH materials after December 31, 2027.
  • Revising § 172.101(c) to clarify that the word "stabilized" must be included as part of the proper shipping name when stabilization is required for transportation.
  • Incorporating by reference the January 1, 2018, edition of the American Pyrotechnics Association (APA) Standard 87-1 A, B, C, "Standard for Construction and Approval for Transportation of Fireworks, Novelties, and Theatrical Pyrotechnics," replacing the December 1, 2001 edition into § 171.7.

Chemical Data Reporting Period Extended a Second Time

With the issuing of a second deadline extension, the 2020 Chemical Data Reporting (CDR) submission period is now set to close on January 29, 2021.

Earlier in the year, the original reporting deadline of September 30 had been extended to November 30, 2020, providing the reporting community additional time to become familiar with updates to the reporting requirements and tool. EPA announced the additional reporting time on Thursday, November 19, 2020, stating, “This submission period extension is in response to stakeholder requests for additional time due to technical issues with the electronic reporting tool.” EPA says it is working to resolve the reporting tool challenges and is providing stakeholders with reporting assistance.

Managing Your DOT Random Testing During Unprecedented Times

End-of-year holidays and vacations often throw a wrench into a motor carrier's plans to notify drivers of DOT random testing. Then add in a national health emergency such as COVID-19, and your annual testing may fall short.

Carriers subject to 49 CFR Part 382 must meet the minimum annual testing rates, 50 percent for drugs, and 10 percent for alcohol, by the last day of the year. With only a few weeks remaining in 2020, it is important to consider your last selection and the timing of notifications if you haven't already.

If a motor carrier procrastinates on scheduling tests, it may run into issues with increased deliveries over the holiday season, vacations, and company shutdowns.

COVID-19’s impact on your FMCSA testing

COVID-19 became an obstacle early in 2020 for many in fulfilling their random testing obligations. The pandemic continues to be a hindrance for some as cases spike nationally.  

An enforcement notice posted mid-year by the Federal Motor Carrier Safety Administration (FMCSA) addresses these difficulties. FMCSA states that employers capable of meeting the random testing requirements under §382.305 must continue to do so. However, the Agency realizes that motor carriers in some locations may be unable to comply due to the ongoing impacts of the emergency.

As a result, the Agency may exercise discretion when enforcing:

  • The minimum annual random testing rates, and
  • The requirement to administer the random tests reasonably throughout the calendar year.

But as FMCSA stated in its guidance, “This Notice is not intended, and should not be perceived, as suspending the current random testing requirements.”

Document the circumstances

Instead, FMCSA clarifies that employers must continue to select at the current annual testing rates and attempt to spread the random tests evenly throughout the calendar year. If the public health emergency prevents a motor carrier from complying with §382.305, it must document the specific reasons for non-compliance, such as:

  • No available options for testing. An example might be testing facilities in the region were closed or had a shortage of testing personnel. Motor carriers should document these circumstances, along with actions taken to find an alternate testing site.
  • Drivers unavailable for testing. If a driver is selected but is unavailable due to a leave of absence (LOA), such as quarantine or contracting COVID-19, this should be documented. As with any LOA, the dates should be noted to show the inability to notify the driver.
  • Driver layoffs. If tests were not spread evenly through the calendar year due to prolonged or intermittent driver furloughs, the employer should explain the impact of COVID-19 on its operations (e.g., X-number of drivers laid off for a specified time period affecting the testing cycle).

During motor carrier investigations occurring in calendar year 2021, enforcement will take into consideration the motor carrier’s documented reasons for random testing violations in 2020 and may exercise enforcement discretion.

Latest EPA Recycling Figures Show Recycling Rates Down for 2018

Ahead of America Recycles Day, November 15, 2020, EPA released an update to a report highlighting the economic benefits of recycling. The agency stressed the importance of recycling, noting it creates jobs, aids manufacturing industries, and significantly contributes to the U.S. economy.

EPA has data tables on national municipal solid waste (MSW) that go back to the 1960s. The most recent Advancing Sustainable Materials Management: Facts and Figures provides data on the state of recycling for 2018. According to the report, the combined recycling and composting rate increased from less than 10 percent of MSW (trash) in 1980 to 35 percent in 2017; however, the rate dipped to 32 percent in 2018. Specifically, in 2018, 292.4 million tons of MSW were generated, with about 93.9 million tons of MSW being recycled and composted. An additional 17.7 million tons were managed through other food management pathways.

In the most recent report, EPA enhanced its food measurement methodology to more fully account for all the ways in which wasted food is managed throughout the food system. In addition, EPA included construction and demolition debris management data. Because of these additions, EPA says MSW generation is higher in 2018 than in 2017.

Measured by tonnage, the most-recycled products and materials in 2018 were:

  • corrugated boxes (32.1 million tons),
  • mixed nondurable paper products (8.8 million tons),
  • newspapers/mechanical papers (3.3 million tons),
  • lead-acid batteries (2.9 million tons),
  • major appliances (3.1 million tons),
  • wood packaging (3.1 million tons),
  • glass containers (3 million tons),
  • tires (2.6 million tons),
  • mixed paper containers and packaging (1.8 million tons), and
  • selected consumer electronics (1 million tons).

Collectively, these products accounted for 90 percent of total MSW recycling in 2018.

Manager Infringed on Employee’s FMLA Leave

Rhonda was diagnosed with a condition that caused chronic fatigue. As a result of this, she requested that she not be scheduled to work more than eight hours per day, and five days per week, for a total of no more than 40 hours per week. She provided a requested FMLA certification supporting her need for such a schedule, which was subsequently approved.

In response, Gertrude, Rhonda’s manager, gave Rhonda a document indicating that her schedule would be a minimum of 40 hours, 8 hours per day at 5 days per week, and any violations would be subject to a performance review. The document, however, listed time ranges on some dates that exceeded 8 hours for the day.

Rhonda asked about being scheduled for too many hours under her FMLA, and Gertrude took her to the H.R. director, who also indicated that Rhonda had to work the hours listed or face potential discipline.

As a result, Rhonda tried to work her assigned hours, even beyond 8 hours per day. One day, however, she asked to leave after only 8 hours due to her condition. She was told that she could not leave; she had to stay to do training. Rhonda, however, did leave. She didn’t go to work the following day, and the day after that, she resigned.

Rhonda then sued, claiming that the employer interfered with her FMLA rights in violation. The employer argued that they did not deny her FMLA rights and, therefore, did not interfere with those rights.

The court indicated that interference isn’t limited to denial of leave. Interference also encompasses using the taking of FMLA leave as a negative factor in employment actions and discouraging an employee from using such leave.

Requiring Rhonda to work more than 8 hours that day could easily be seen as discouraging her from taking leave; therefore, the employer interfered with her FMLA rights. The case was allowed to advance.

Often, managers and supervisors are not indoctrinated to even the basics of the FMLA, including that FMLA leave is a right; that the FMLA is an employee entitlement law, and interfering with those rights can risk a claim. Managers and supervisors, and even some H.R. directors, are also not familiar with what interference can look like. In this case, the employer undermined the employee’s reduced schedule, resulting in having so spend resources defending its actions.

Hudak v. Brandy et al., Northern District of Indiana, No. 3:18-cv-932, October 27, 2020

Voters in 5 States Approve Marijuana Measures

Voters in five states passed ballot initiatives legalizing recreational and medical marijuana on November 3.

South Dakota became the first state to legalize both recreational and medical marijuana in the same election. Recreational marijuana was also legalized in Arizona, Montana, and New Jersey, and medical marijuana was approved in Mississippi.

The measures bring the number of states with legalized medical marijuana to 35. Recreational marijuana has been legalized by 15 states.

State laws vary. The increase in the number of states with legalized marijuana makes it more important than ever for employers to review drug and alcohol policies and drug testing provisions to make sure they comply with state laws.

Before taking action against an employee or applicant for marijuana use, employers should be familiar with any state restrictions

Marijuana remains a Schedule 1 drug under the federal Controlled Substances Act. Over the past few years, however, courts have been looking to state laws when deciding cases related to marijuana use.  

Federally regulated employees need to continue to abide by federal law. Employees regulated by the U.S. Department of Transportation face the consequences for a positive drug test for marijuana, no matter which state they are in.

Materials include content from J. J. Keller® RegSense® Service.

This material is intended to be a broad overview of the subject matter and is provided for informational purposes only. Old Republic Contractors Insurance Group, Inc. does not endorse or recommend any products or services nor does it make any representation or warranty regarding the accuracy or completeness of the information. Old Republic Contractors Insurance Group, Inc. shall have no liability or responsibility to any person or entity with respect to any loss, action or inaction alleged to be caused directly or indirectly as a result of the information contained herein.

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