COVID-19 Archives - Strategic HR

Image of the Wheel of HR featuring Legal Compliance and Recordkeeping Services from Strategic HR Business Advisors

Who Has to Submit OSHA Form 300A?

Published January 25, 2022
in COVID-19, HR Compliance, Recordkeeping

HR Question:

I heard that the OSHA Form 300A has to be posted by February 1. Who has to submit this form?

HR Answer:

Employers that had 11 or more employees at any point in 2021 are required to post Occupational Safety and Health Administration (OSHA) Form 300A from February 1 through April 30 unless they qualify as an exempt low-risk industry. A full list of exempt low-risk industries, ordered by North American Industry Classification System (NAICS) codes, can be found here.

The employee count is based on the number of employees in the entire company, not per establishment. If the company is subject to routine recordkeeping requirements, records must be maintained for each physical establishment.

All covered employers are required to post Form 300A even if they didn’t have any recordable incidents in 2021. (Recordable incidents are required to be maintained on the OSHA 300 Log of Work-Related Injuries and Illnesses.) OSHA Form 300A must be certified by a company executive and posted in a conspicuous location where notices to employees are customarily posted. Here is the OSHA Log of Work-Related Injuries and Illnesses (Form 300), Summary (Form 300A), and Instructions.

If your workplace is currently closed because of COVID-19, and you are unable to post the log there, we recommend posting it on your company intranet page, virtual bulletin board, or other location online where it can be easily seen and accessed by employees. If you return to the workplace before April 30, you should also physically post it at that time.

Form 300A Electronic Submission Required for Certain Employers by March 2

Employers must submit their 2021 Form 300A data to OSHA if they have 250 or more employees or have 20–249 employees and are in certain high-risk industries. Employers must use OSHA’s online Injury Tracking Application (ITA). The deadline to submit the report is March 2, 2022.

The electronic reporting requirements are based on the size of the establishment (how many employees are at the physical location), not how many employees are in the entire company.

Employers that are required to send their Form 300A to OSHA must submit injury and illness data using the ITA online portal. This also applies to employers that are covered by a State Plan that has not yet adopted its own state rule.

Employers that meet any of the following criteria DO NOT have to send their information to OSHA:

Employers that are exempt from OSHA’s routine recordkeeping requirements, as mentioned above.
Employers that never had 20 or more employees during the previous calendar year, regardless of industry.
Employers that had between 20 and 249 employees at some point during the previous calendar year but are NOT on this list of high-risk industries.

Additional information, FAQs, and the Injury Tracking Application can be found on OSHA’s site, here.

Thank you to the HR Support Center for providing the content for this Question of the Week. The Virtual HR Support Center is a do-it-yourself, always ready, at-your-fingertips resource for everything Human Resources. Contact us to learn how the Virtual HR Support Center can put all the DIY HR tools you need at your fingertips.

What Employers Need to Know About Vaccination Surcharges and Mandates

Published September 16, 2021
in COVID-19, HR Compliance

HR Question:

Our company is weighing our options between implementing COVID-19 vaccination incentives, surcharges, or a mandate. What employment laws do we need to consider in our decision-making process?

HR Answer:

As you can imagine, Delta Airlines’ announcement of a vaccination surcharge and President Biden’s hint that mandatory vaccination rules may be forthcoming are generating a lot of questions. As such employers are evaluating the pros and cons of vaccination programs. Employment considerations are beyond the scope of this blog post, but the design of the vaccination program will ultimately determine what laws apply from a benefits industry perspective. Some decision points that impact the laws that apply include:

Will the incentive be tied to the group health plan or premium in any way?
Will vaccines be provided by the employer or an organization hired by the employer?
Will vaccination status simply be reported by the employee?

These decision points dictate the compliance considerations and laws that will apply to the incentive program. The laws that may apply include HIPAA, ACA, ADA, and others. The following is an overview of some of the considerations under each of these laws.

Health Insurance Portability and Accountability Act (HIPAA)

If the incentive provided by the employer is tied to the group health plan, the plan must comply with HIPAA nondiscrimination rules. The HIPAA rules define wellness programs as either participatory or health-contingent activity-based or health-contingent outcomes-based.

Participatory programs do not require individuals to meet a health-related standard to receive the reward and incentives under participatory programs are unlimited.
Health-contingent programs require individuals to meet a health-related standard to receive the reward.

While there is some debate whether vaccination status is participatory or health-related, many attorneys are advising employers to treat a vaccination reward or surcharge as a health-contingent activity wellness program because vaccination may not be recommended for certain individuals due to underlying health concerns.

The HIPAA rules require that a health-contingent activity-based program must:

Be reasonably designed to promote health and prevent disease;
Be made available to all similarly situated individuals, which includes providing a reasonable alternative or waiver to any individual for whom it is medically inadvisable or unreasonably difficult to receive the vaccine;
Provide an opportunity to qualify for the reward at least once per year;
Limit any incentives under the terms of the wellness program to no more than 30% of the cost of coverage (based on single rate if only employees may participate or family rate if dependents may participate); and
Disclose the availability of a reasonable alternative standard for anyone for whom it is medically inadvisable to receive the vaccine

Any vaccination incentive must be combined with any other wellness incentive given for a participant meeting a health-contingent factor when determining if the 30% limit is satisfied (unless the other incentive relates solely to non-use of tobacco). Additionally, employers may be required to provide religious accommodation under the terms of the wellness program for those individuals with closely held religious beliefs.

Affordable Care Act (ACA) Affordability

Another watch out for employers when incentives are tied to the group health plan is affordability under the ACA’s shared responsibility provisions (applicable to employers with 50 or more full-time equivalent employees). Employers must make an affordable offer of coverage or risk a penalty if an employee enrolls in marketplace coverage and receives assistance. Offers of coverage are considered affordable if they are less than 9.83% of household income in 2021 (decreased to 9.61% for 2022). When calculating whether or not an offer of coverage is affordable (including under any of the three safe harbors), the employer must assume that all participants fail to meet the health standard (in this case vaccination) and must pay the higher premium.

There is one exception with regard to tobacco use. Employers may assume that employees are non-tobacco users when determining affordability. In this case, employers may determine affordability based on the non-vaccinated (or non-wellness)/non-tobacco user rate.

Americans with Disabilities Act (ADA)

The ADA applies to employer wellness programs when the program makes a disability-related inquiry or medical exam. If the employer, or third-party on behalf of the employer, requests medical information as a screening before providing the vaccine, the plan must comply with the terms of the ADA and should consult employment counsel.

For employers who intend to simply verify vaccination status, EEOC guidance indicates that vaccination status alone is not considered a disability-related inquiry. Therefore, vaccination status alone will not trigger an employer needing to comply with the EEOC wellness plan rules.

Complicating Factors

Beyond the direct compliance requirements posed under vaccination programs, there are also administrative challenges:

What is considered a reasonable accommodation under the ADA or a reasonable alternative standard under HIPAA for individuals who require an exemption from vaccination?
How will employers accommodate employees that have valid religious objections to receiving the vaccination?
What will employers accept as proof of vaccination? Vaccine cards are given to those that have received the vaccine; however, there are reports of fraudulent vaccine cards.
Employers that offer a one-time bonus or gift cards should remember that these incentives are taxable income.

Conclusion

Employers have many issues to consider when it comes to offering incentives/penalties to encourage vaccination. This is a new dilemma employers are facing as they consider return to work plans and the safety and health of their employees. President Biden’s announcement that the Occupational Safety and Health Administration (OSHA) is working on guidance that may require certain employers to mandate vaccines could complicate the issue further. Time will tell and we need to wait and see whether and when OSHA issues guidance requiring mandatory vaccination. Employers should consider engaging legal counsel in the discussion and design of any vaccination program to have a clear understanding of compliance and potential risks from both an employment and benefits perspective.

The information contained in this document is informational only and is not intended as, nor should it be construed as, legal or accounting advice. Neither HORAN nor its consultants provide legal, tax nor accounting advice of any kind. We make no legal representation, nor do we take legal responsibility of any kind regarding regulatory compliance. Please consult your counsel for a definitive interpretation of current statute and regulation and their impact on you and your organization.

Special thank you to Shelly Hodges-Konys, Director of Compliance with HORAN for contributing to this edition of our HR Question of the Week.

If you’re overwhelmed with trying to stay on top of ever-changing HR compliance rules and regulations, Strategic HR is here to help! Our senior HR consultants can help you to identify and understand relevant regulations, assess the impact on your company, and advise you on the appropriate times to seek legal counsel. Learn more about our HR Compliance & Recordkeeping services, or contact us today.

Can I Ask if My Employees Are Vaccinated?

Last Updated October 11th, 2022
in COVID-19, Health, Safety & Security, HR Compliance, Recordkeeping

Can we ask if our employees are vaccinated? Isn’t this a HIPAA violation or an illegal inquiry under the ADA or somehow confidential information?

Employers can ask for proof of vaccination unless there is a state or local law or order to the contrary.*

When an employer is requesting or reviewing medical information in its capacity as an employer, as it would be when asking about an employee’s vaccination status, it is considered to be an employment record. In such cases, HIPAA would not apply to the employer. The Americans with Disabilities Act (ADA) will govern the collection and storage of this information.

The Equal Employment Opportunity Commission (EEOC), which enforces the ADA, has stated that asking about vaccination is not a disability-related inquiry, though it could turn into one if you ask follow-up questions about why the employee is not vaccinated. Asking a yes or no question, or requesting to see the employee’s vaccination card, does not violate any federal laws or require proof that the inquiry is job-related.

Finally, just because employees think that something is or should be private or confidential doesn’t mean they can’t be required to share it with their employer. Social Security numbers, birth dates, and home addresses are all pieces of information an employee may not want to advertise, but sharing is necessary and required for work. Vaccination status is similar. However, all of this information, once gathered, should not be shared by the employer with third parties, except on a need-to-know basis.

*It appears that some governors may attempt to prevent certain entities from requiring “immunity passports” (e.g., proof of vaccination) through an executive order (EO), though as of July 31, none of the EOs already issued appear to apply to private businesses and their employees. Also note that if there is a law in place that prevents treating vaccinated and unvaccinated employees differently (like in Montana), you may be able to ask, but not take any action based on the response.

Should we keep a record of who is vaccinated or make copies of vaccination cards? If we do, how long should we keep that information?

If you’re asking about vaccination status, you’ll want to keep some kind of record (so you don’t have to ask multiple times), but how you do this is up to you, unless state or local law has imposed specific recordkeeping requirements. You may want to keep something simple like a spreadsheet with the employee’s name and a simple “yes” or “no” in the vaccination column. If you’d prefer to make a copy of their vaccination card, that should be kept with other employee medical information, separate from their personnel file. Per OSHA, these records should be kept for 30 years.

If we keep a record of who is vaccinated, can we share it with managers who will be required to enforce policies based on that information, such as masking and social distancing?

Yes. We recommend not sharing this information any more widely than necessary. While anonymized information is okay to share (e.g., “80% of our employees are vaccinated”), each employee’s vaccination status should be treated as confidential, even if the fact that they are wearing a mask to work seems to reveal their status publicly. Obviously, managers will need this information if they are expected to enforce vaccination-dependent policies, and employers should train them on how they should be enforcing the policies and how and when to escalate issues to HR or a higher level of management.

Special thanks to the HR Support Center for providing this edition of our HR Question of the Week.

For further COVID-19-related resources, check out our COVID-19 Employer Resources page or contact us for direct assistance.

This article does not, and is not intended to, constitute legal advice. Information and content presented herein is for general informational purposes only and readers are strongly encouraged to contact their attorney to obtain advice with respect to any legal matter. Only your individual attorney can provide assurances that the information contained herein is applicable or appropriate to your particular situation or legal jurisdiction.

HR Wheel for Recruitment Services from Strategic HR Business Advisors.

Why Do My Candidates Keep Dropping Out?

Last Updated October 11th, 2022
in COVID-19, Recruitment

New Year, New COVID Questions: Mandate the Vaccine? Extend Paid Leave?

Last Updated November 15th, 2021
in COVID-19, HR Compliance

HR Question:

Although I was hoping to leave the challenges of 2020 behind, I’m finding that they’re seeping into 2021 – along with new challenges. Now, I’m faced with new COVID questions to confront: mandate COVID vaccines … or not? Extend Paid Sick Leave and EFMLA … or not? How do I make the best decisions here?

HR Answer:

Unfortunately, COVID is still with us, but hope is on the horizon with the vaccine. Employers across the country (and the world) are struggling with the same COVID questions you are about whether or not to mandate that all employees get vaccinated. The EEOC has made it clear that employers CAN require that employees get the COVID vaccine (in most cases). However, the question becomes whether employers SHOULD require it. There is no perfect answer, so we’ll default to the typical lawyer answer: “It depends.”

Companies need to consider whether mandating vaccination is necessary. Because each business is different, there is no universal litmus test for employers.

Here are some common factors that employers should consider:

In what industry is your company? (Healthcare is different than construction.)
What are other similar businesses doing? (We’re all in this together.)
Are your employees designated to an early phase/group for vaccine eligibility?
If not, when could you reasonably expect the vaccine to be readily available? (There’s no need to create a stir now if your employee population consists primarily of healthy people in their twenties and thirties who will be toward the end of the eligibility list.)
If there is continued exposure, how will that harm your business?
How will your employees react?
What will the consequence be for employees who refuse to get vaccinated?
Who is going to be the “Vaccine Police” and track everything? (“1, 2, 3 … Not IT!”)

It’s okay to take a “wait and see” approach

These are not easy questions. Keep in mind that the law requires employers to make accommodations for individuals with disabilities and religious concerns. Also important: there is no prize for being the first to mandate vaccination. At this point, many businesses are encouraging employees to get vaccinated, but taking a “wait and see” approach when it comes to mandating. Part of the “encouraging” process includes educating employees about the benefits of vaccination. This includes reminding them that the company will not be providing paid leave if they are off for COVID purposes. If your employees are already on board with vaccination, there is no reason to take a heavy-handed approach.

Should you extend Paid Sick Leave and EFMLA?

The other COVID questions keeping HR professionals awake at night is what to do about extending Paid Sick Leave and Emergency FMLA. Congress and the President gave companies the option to continue providing these leaves to employees and receive tax credits through March 31, 2021. Many of our clients are continuing the leaves. Some are not.

Here are factors to consider:

How has leave usage impacted staffing and customer service?
Have employees been using the leave properly or abusing the leave?
Is it a hardship on the company or other employees to continue providing leave?
What is the impact on employees who legitimately need the leave?
How will the decision impact employee morale?
How many employees are currently on leave?
Is the employer a public or private entity?

Communication is key

Regardless of your decision, communication is key. It is critical for employers to communicate the decision to end or extend benefits so that employees are aware of their options. The decision should be company-wide so there is no favoritism of one employee versus another.

As usual, things with COVID continue to evolve. Good ideas a few months ago may be bad ideas today, so make sure to keep up to date. I know we’re all tired of hearing about these “unprecedented times,” but nonetheless, we will carry on. Deep breaths. Smile. 2021 is going to be better. Bring. It. ON!

Special thanks to attorney Lee Geiger from Graydon for contributing to this issue of our HR Question of the Week! As a valuable partner to Strategic HR, we appreciate both his legal expertise and wit.

Whatever HR challenge your business may be facing, Strategic HR can help! Whether it’s by developing a comprehensive strategic business plan through our HR Strategy services or helping you navigate COVID-19 HR strategy issues, our team of experienced consultants is waiting to partner with you.

Back-to-School: Frequently Asked Questions about Leave under the Families First Coronavirus Response Act (FFCRA)

Last Updated November 15th, 2021
in COVID-19, HR Strategy

Special thanks to the HR Pros at the HR Support Center for sharing their expertise regarding Back-to-School leave requests!

Q: If children and their parents can choose between in-person schooling or online schooling, can we deny leave to employees who choose online schooling?

A: We don’t know yet. EFMLA can be used when a child’s school or place of care is “closed,” such that the child cannot be there in person. This might suggest that if the option is available to attend in-person, that those choosing online school would not be eligible for leave. However, we expect that many school districts will need a certain percentage of students to take classes online to make in-person school possible at a sufficiently reduced capacity. In effect, these schools will be “closed” to a certain portion of the student body and it may or may not matter whether the parents chose the online option. We expect guidance from the Department of Labor soon that will answer this question definitively.

Q. If kids are going to school in-person two days a week and doing school from home three days a week, do we have to give a parent three days a week off or can we refuse intermittent leave?

A. If you’re in the Southern District of New York, you must grant intermittent EFMLA if that is what an employee needs and asks for. That district includes the counties of Bronx, Dutchess, New York, Orange, Putnam, Rockland, Sullivan, and Westchester.

In the rest of the country, the answer is not clear, but we certainly recommend providing intermittent leave (as does the Department of Labor). Employees with children are in desperate need of flexibility and understanding right now and refusing a request for intermittent leave may lead to low morale, low productivity, or the employee quitting.

Keep in mind that not all employees will want a full day off just because a child is doing school from home—many may request an hour or two in the morning and an hour or two in the afternoon. Being open to these kinds of requests should help you maximize productivity (as much as possible under tough circumstances) and reduce turnover.

Q. Can we set up childcare or tutoring in the workplace?

A. While it may be possible (and we applaud the creativity), you’d want to consult with an attorney or someone else in your state that is familiar with the kind of licensing and insurance that would be required to do this. Even if you were only allowing children in the workplace occasionally, and they remained under the control of their parent, you’d want to check with your general liability carrier to make sure that it would cover incidents that involved a visiting child.

Q. Can I deny leave to an employee who has high schoolers who should be able to take care of themselves during the day?

A. No. However, if the child or children are 15 or older, you should require that the employee provide a statement or affirmation that there are special circumstances that cause the older child to need their care. They do not need to provide any further information beyond that statement (such as what the special circumstances are). If you feel it necessary, you can remind all employees that it is fraudulent to take FFCRA leave if they are not unable to work as a result of the care they will be providing.

Q. Can we require proof that the school or place of care is closed?

A. No. You can and should (for IRS documentation) require the names and ages of the child or children being cared for and the name of the school, place of care, or caregiver that is closed or unavailable due to COVID-19. You should also require a signed statement that the employee is unable to work because they need to provide care for the child or children. Finally, if the child or children are 15 or older, the employee needs to indicate that there are special circumstances (but doesn’t need to explain them).

We don’t encourage independent sleuthing to verify what an employee tells you, but if you feel that’s necessary, be very careful of doing anything that could infringe on an employee’s right to privacy. Also be consistent in verifying this kind of information—if you are only fact-checking certain employees, you’ll open yourself up to complaints of unfair treatment.

Q. Can I ask an employee to look for outside childcare?

A. You can ask or encourage employees to look for other options, but you can’t require any proof that they have done so and you can’t deny leave because you think they didn’t try. In this case, all an employee needs to provide in a request for FFCRA leave is a statement that no other suitable person will be taking care of the child when they have requested leave for that purpose. Ultimately, who is “suitable” will be up to a parent.

Q. Can I deny leave if I think or know an employee is lying about the need to care for a child?

A. There is significant risk in denying a request for FFCRA leave if an employee has provided the appropriate documentation. That said, if you believe the request is fraudulent, you should have a discussion with the employee before granting or denying leave. If it turns out that they were submitting a fraudulent request—and you have sufficient evidence to support that—you can take disciplinary action if it seems appropriate. If, after discussion, you think their request is more likely than not legitimate, you should grant it.

Be careful of disciplining an employee who requests leave but doesn’t meet the necessary criteria. These leave entitlements can be confusing, and it would be unlawful retaliation to discipline an employee who was attempting to use their right to leave in good faith.

Q. If an employee’s stay-at-home spouse is sick with COVID-19 and unable to care for their children, can they take FFCRA leave to do so?

A. Yes, the children’s regular care provider (the stay-at-home spouse) is unavailable because of COVID-19, so the employee would be able to use either EPSL or EFMLA to provide care while their spouse is not able to do so.

Q. What if an employee won’t fill out the required FFCRA documentation?

A. The earliest an employer can require notice is after the first workday of FFCRA leave. (The regulations require employees to provide notice of their need for school closure leave as soon as practicable, but there are no consequences if the employee doesn’t do so.) If, after the first workday, the employee does not provide sufficient documentation to support their request for leave, they must be notified of the problem and given an opportunity to provide what is needed. If the employee still does not provide completed documentation after being given a reasonable opportunity to do so, then the employer is not required to provide FFCRA leave.

Q. Can we terminate an employee who is unable to work because they need to care for a child but have used up their leave under the FFCRA?

A. Assuming that no other leave laws apply, termination is an option. But you may want to instead consider offering the employee an unpaid personal leave of absence or revisiting whether a flexible or part-time work schedule would be better than losing the employee entirely. Recruiting, hiring, and training are all expensive undertakings, so if there’s a way to keep an employee around—even if they need some time off—that is likely better for your bottom line.

If you do decide to terminate an employee who is out of leave, make sure you can be consistent in that response going forward. If you are flexible with some employees while firing others, you will open yourself up to claims of discrimination.

Q. What if we find out after we’ve granted and paid for an employee’s leave that it was fraudulent? Do we make them pay us back or report them to the IRS?

A. There is not yet clear guidance about how to handle this situation, so we recommend calling your local Wage and Hour Division of the Department of Labor. They are generally very responsive and may be able to provide some guidance based on your situation.

The Virtual HR Support Center is a do-it-yourself, ready 24/7, at your fingertips resource for everything Human Resources. From employee handbooks, job descriptions and other commonly used HR documents, to up-to-the-minute law alerts, state and federal law libraries, and unique training videos, the Virtual HR Support Center will help you effectively manage your HR compliance and employee relations needs. Contact Us to learn how the Virtual HR Support Center can put all the DIY HR tools you need at your fingertips.

How Can HR Navigate the Back to School Season?

Last Updated November 15th, 2021
in COVID-19, HR Strategy

HR Question:

As schools begin their new year, the format of school is changing nearly daily – which is hard enough for kids and parents without the added stress of returning in a COVID-19 environment. As HR and business leaders, how can we best navigate the back to school season? What are other organizations doing to try and accommodate employees’ needs to be home with their kids?

HR Answer:

It’s no secret that schools are facing a unique and intimidating challenge as they try to return to a sense of “normal”. Parents and schools are turning to CDC guidance as they develop plans to educate and engage students in a time of extraordinary safety concerns and varying accessibility. In turn, employers are impacted as employees must accommodate their schools’ plans for their children.

As business leaders and HR professionals, we must realize that this is an extremely fluid situation, and there, categorically, is no one-size-fits-all! Every employee will have different needs as there is no singular standard school plan that districts are following. And, even if a plan is in place, we are already seeing it change rapidly based on outbreaks, exposures, needs to quarantine, and many other variables.

So how is HR supposed to navigate all of the plans, requests, and changing needs of this unique back to school season? If an employee approaches you about their need to be at home with their child, start first by asking the employee the following:

Provide the School’s Plan: When an employee makes you aware that their child’s school’s plan may interfere with their ability to work their normal schedule, request the employee to provide a copy of their most recent school plan.

Ask the Employee to Provide Potential Solution(s): We recommend asking the employee to submit ideas of how they can accomplish their job based on needs presented by the school schedule. This would be somewhat like the ADA accommodation interactive process, but without the legal obligation to consider. Encourage the employee to engage with peers in their workgroup to ensure adequate coverage. This can actually help team cohesiveness and empathy if there is a willingness to help out a colleague.

Next, the company and employee should consider and discuss:

What are specifics of how the school needs overlap with the work schedule?
Can the employee perform their job from a remote location?
What is the age of the child to determine how much actual oversight will be needed? If the employee is working from home, is it even feasible that they can actually work, or will they need to be actively involved in the child’s learning or have too many distractions? (This may vary from child to child, depending on learning needs.)
Does the position have flexibility regarding when the work needs to be done, or can it be done during off-hours?
What resources does the employee have to be able to work from home and what will the employer need to provide? (i.e., computer, internet connection, phone access, equipment, etc.) What are the costs associated with this? (Note: check your state laws if the employer is required to reimburse this to the employee.)
How will any changes impact the ability of other employees/departments to function effectively? If significant assistance is needed from others, or significant ongoing preparation is needed for the employee to be able to work from home, it may not be feasible.
If working from home is not feasible, can the employee work an adapted schedule or a different shift and still meet the company’s needs? (i.e., coming in early or starting late, working evenings, weekends, or alternate shifts)
How will communication be established between the employee, manager, and the team?

This is just a start of things to consider, and HR may find themselves having to get a little creative (i.e., flexible hours, working remote, onsite daycare, assisting with the cost of a caregiver, intermittent leave, job sharing). Every aspect should be looked at from both the employee’s and the business’ perspective.

While a company has no obligation to accommodate such a request, refusing to accommodate presents its own share of challenges. Employees may quit to stay home and take care of their children, or request leave (don’t forget the potential benefit of EPSLA and EFMLEA). This may leave the company short of the staff and the skills needed to be productive. Employers should also consider the perception of employees, customers, and the public if they refuse to work with employees.

What works for one employee may not work for another, even if they are in the same role. If you choose to try to work with the employee, communication is critical. The plan may need to change as you work out the logistics or as school plans change.

These are extraordinary times that are presenting extraordinary challenges. Even if you can’t fully meet each employee’s needs, showing a willingness to try and work with the employee can go a long way toward how the company is viewed. If you aren’t able to make it work, make sure the employee understands the reasoning why. This isn’t the first time HR has had to prepare for the back to school season, but most assuredly – it will be the most unique.

Thanks to Cathleen Snyder, SPHR, SHRM-SCP, for writing this HR Question of the Week!

Whatever HR challenge your business may be facing, Strategic HR can help! Whether it’s by developing a Back-To-School plan, developing a comprehensive strategic business plan through our HR Strategy services, or helping you navigate COVID-19 HR strategy issues, our team of experienced consultants is waiting to partner with you.

Image of Strategic HR Wheel of Services highlighting Communications

How Can I Prevent Tension Between My Remote Team and On-Site Team?

Last Updated November 3rd, 2020
in Communications, COVID-19

HR Question:

Due to COVID-19, some of my team members are able to work from home. However, I have other team members that I need to be present in the office. This has understandably caused some frustration for those that need to be on-site, as they may feel that the situation is unfair. How can I prevent tension between my remote team and my on-site team members?

HR Answer:

While telework can have many benefits (both actual and perceived), the fact is that it doesn’t work for every type of role. What may be possible for a designer, accountant, sales member, or marketer may not be possible for the office’s receptionist, the engineering team for the building, or essential workers on the front line. This can cause the perception of inequities between the “work-from-home-haves” and the “work-from-home-have-nots,” leading to tension, friction, and frustration. If your work environment is a blend of remote and on-site employees, consider these key actions that an employer can take to help prevent tension between their remote and on-site team.

Prevent Tension By Communicating

First, communication is critical. For employees whose roles may not allow them to work from home, it’s important they understand why the opportunity cannot be afforded. Equally as important, managers and leaders should make it clear that their willingness to work these essential roles is more than appreciated. This can be done through ongoing communication, manager and leaders going out of their way to recognize team members on a daily basis, or even having those that are working remotely create thank you messages to the essential on-site staff.

Say Thank You

Small acts of gratitude could go a long way as well. For those who are on-site, show your appreciation by providing an occasional lunch or donuts (allowing for social distancing and COVID-19 safety measures) and letting the on-site workers know they are valued. Consider the approach a local Cincinnati waste removal company took to thank their essential workers for working throughout the pandemic. Ensure that managers and leaders are present and actively thanking team members for stepping up.

Educate Your Team

Finally, be sure that you are educating your staff – no matter their role. Educating the essential, on-site workers on how their role contributes to the overall success of the company. It is also important that any concerns that essential workers may have are addressed to the extent possible. Where there are safety concerns, ensure essential workers and anyone coming on the premises have a clear understanding of the measures that have been put in place to keep them safe. The need for communication and education cannot be overstated.

For those employees who are working from home, educate them on why this opportunity is available. Yes, there are personal benefits, but there are also business reasons that are key to understand as well. Remote employees need to understand that this privilege is not available to everyone. Often, it’s the work that essential workers do, manufacturing, healthcare, grocery workers, etc. that helps make the remote work possible. Take the opportunity to share the expectations of your remote team, and how their actions will directly contribute to the health of the business, particularly during this trying time.

The COVID-19 pandemic has presented challenges very few ever expected. With the varying levels of risk that come with working on-site, it’s easy for potential frustrations to occur when some employees are expected in the office while others are not. Prevent tension between your remote and on-site teams with frequent communication, saying thank you often, and educating everyone on the team as the situation develops.

Communication often seems like a “no-brainer.” HOW you communicate is often as important as WHAT you communicate when it comes to getting results! Strategic HR has years of experience preparing communications for a variety of audiences and topics. Visit our Communications page to learn how we can assist you with various communication-based projects.

Image of HR Wheel of Services emphasizing Benefits and Compensation Services from Strategic HR Business Advisors

Am I Able to Make Changes to My FSA Due to COVID-19?

Last Updated October 22nd, 2020
in Benefits & Compensation, COVID-19

Thank you to Shelly Hodges-Konys, CBC, Director of Compliance with HORAN for her contribution to this HR Question of the Week!

HR Question:

I have heard that I am able to make changes to my Flexible Spending Account (FSA) mid-year due to COVID-19? Is this true and what are the requirements of such a change?

HR Answer:

There is a saying about change by William Arthur Ward that I once read, “The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.” If there is one thing that we can count on from a regulatory perspective, it is that we need to learn to adjust the sails and do so quickly. We have received numerous questions from clients over the past few weeks about the changes an employee may make to benefits received through Section 125 pre-tax plans. It has been difficult to respond because none of the guidance up to this point has provided any clear relief for flexible spending accounts, dependent care accounts, or pre-tax benefit elections. However, yesterday the IRS issued two notices – Notice 2020-29 and Notice 2020-33 that provide welcome flexibility for employers.

The IRS rules generally require elections made under Section 125 plans to be irrevocable during the plan year, unless an employee experiences a qualifying mid-year change event (e.g., a change in status that results in a corresponding change in eligibility). IRS Notice 2020-29 permits employers during the 2020 calendar year to amend their plans to allow for some additional mid-year changes that are not permitted under normal circumstances. The new guidance permits plans to allow employees to make the following changes on a prospective basis:

Make a new election for health benefits if the employee initially declined the employer plan;
Change an existing election for health benefits including changing plans offered by the employer and changing coverage level (for example, an employee may change from an HDHP plan to PPO coverage offered by the employer or change from employee only to family coverage);
Drop coverage if the employee attests that they intend to enroll in other group health insurance coverage;
Change or revoke a health care flexible spending account election; and/or
Change or revoke a dependent care flexible spending account election.

Further, elections made for flexible spending accounts, are generally use-it or lose-it. If account balances are not used by the end of the plan year (or grace period for plans that provide for a 2.5 month grace period), the money is forfeited by the participant and retained by the plan and applied to the costs of administering the plan. The new guidance also provides flexibility for employers to allow employees an additional period of time to use unspent flexible spending account balances. This relief applies only to non-calendar year plan years ending in 2020 or plan years ending in 2019 that have a grace period that extends into 2020. These plans may be amended to allow a participant to use funds that otherwise would have been forfeited during the 2020 calendar year for expenses incurred through December 31, 2020.

This relief is available to all health and dependent care flexible spending account plans, including those health flexible spending accounts that are limited purpose or health savings account compatible.

IRS Notice 2020-33, provides additional relief for health care flexible spending account plans that have a carryover feature. A carryover feature allows participants to carryover up to $500 from the previous plan year into the subsequent plan year. For plan years beginning in 2020, the maximum amount of carryover a plan can allow has been increased from $500 to $550. This amount will now be indexed for inflation on an ongoing basis.

For employers that sponsor high deductible health plans, be aware that this relief did not change the rules regarding the interaction of flexible spending accounts and health savings accounts (HSAs). Employees that participate in a flexible spending account with a rollover provision, a 2 ½ grace period, or are offered an extended coverage period are ineligible to make HSA contributions for the duration of the coverage period (unless the flexible spending account is HSA compatible or amended to be HSA compatible).

All of the relief offered by the guidance is completely optional. Employers may choose whether to adopt some of the provisions, all of the provisions, or none of the provisions. Employers who wish to provide this flexibility to plan participants will need to amend their plans and have until December 31, 2021, to do so. Plan amendments may be adopted retroactively to January 1, 2020, as long as plan participants are informed of the changes and the plan is operated in accordance with those changes.

Thank you to HORAN for providing the content for our Question of the Week. HORAN serves as a trusted advisor on employee benefits, wealth management and life and disability insurance. To learn more about HORAN, please contact HORAN for additional information.

Visit our COVID-19 Employer Resources to find the information, links, and tools you need to move your business forward in these uncertain times.

Do I Need to Adjust My COBRA Process Due to COVID-19?

Last Updated November 22nd, 2022
in Benefits & Compensation, COVID-19

HR Question:

I’ve seen several changes in employee benefits and programs as a result of the pandemic. Do I need to adjust my COBRA process due to COVID-19?

HR Answer:

Yes, due to COVID-19, there have been many changes to group health plans, pension plans, and other welfare plans, such as COBRA, FMLA, and more. As businesses and leaders have scrambled to meet the fluctuating needs of this time, many of our federal agencies have done the same.

Specifically, as it relates to COBRA, the Department of Labor and the Internal Revenue Service have published information and updates on COBRA deadlines during the pandemic, providing relief to those impacted by the virus.

As you may know, the Consolidated Omnibus Budget Reconciliation Act (COBRA) is a program that provides for the continuation of group health coverage for some employees and their families when they experience a job loss or reduction of hours. Your normal, already established COBRA processes may be altered or adjusted as new and unique situations continue to crop up as a result of COVID-19. Not only will your processes adjust, but the way that you communicate these benefits and processes will as well.

The revisions outlined in the released statement requires group health plans, disability and other welfare plans, and employee pension benefit plans to extend their timelines by a period of time they designate as the “Outbreak Period”. The Outbreak Period is from March 1, 2020 until 60 days after the end of the declared National Emergency. The ending date, obviously, is an unknown date at this time. Simply stated, employers must exclude the time during the Outbreak Period when determining deadlines for COBRA. This would include deadlines for notification as well as election.

As an example, COBRA elections must be typically made within 60 days of the notice. Under this extension, the Outbreak Period is ignored so if the qualifying event occurs during the Outbreak Period, the election period deadline will extend to 60 days after the end of the Outbreak Period. What does that mean? Someone you sent a notice to last week will have 60 days after the end of the Outbreak Period (unknown at this time) to elect coverage.

Another pertinent example is with COBRA Payments. Typically COBRA provides a 45-day premium period with a 30-day grace period. Under this extension, the Outbreak Period is ignored in determining the deadline for premium payments under COBRA. It is noted that claims do not have to be paid during this non-payment time, but they must be paid immediately upon resumption of the benefits after the premium is paid.

Other areas of COBRA that are impacted by these adjustments include:

HIPAA Special Enrollment Rights
Employee Notice of a Qualifying Event or of Disability
Deadline for Participants to Make an Initial Claim
Deadline for Appeal of a Denied Claim
Interim Claims Procedures Deadlines

Additional details on all of these items can be found on the Federal Register.

As an HR professional, keep in mind these extension periods and review deadlines before terminating coverages or not allowing enrollment due to deadline considerations. Better to be safe during this time of change!

Strategic HR has the answers to all of your tough Benefits and Compensation-related questions, particularly when addressing the new challenges that COVID-19 has presented. Please visit our Benefits & Compensation page for more information.

Characteristics of Strong Leadership During COVID-19

Last Updated October 22nd, 2020
in COVID-19, Training & Development

HR Question:

As a result of COVID-19, many business leaders will be put to the test as their businesses have had to stop, reassess, pivot, and restart parts of or all of their operations in a flash. What are some characteristics of strong leadership during COVID-19?

HR Answer:

During a crisis, leadership characteristics and values are really put to the test. In the last two months, leaders have been thrust into a challenging and unprecedented landscape that is difficult to navigate – even for the best. And it won’t stop now. The COVID-19 pandemic has been especially chaotic due to the quick decision making and response times required to overcome unfamiliar obstacles while meeting the needs of employees, customers, partners/vendors, and more. These are unchartered waters. There is no playbook. We’re learning and innovating as we go. So, what does it take to be a successful captain?

There are many characteristics that can make a strong leader, but there are five in particular that can set managers and executives up for success. By activating the below strengths in your work and daily life, leaders can help their teams and their companies navigate these choppy waters.

Characteristics of Leadership During COVID-19

Agility and Adaptability: The willingness and ability to change quickly and easily. To be able to shift to new or different ways of thinking. If there is one skill set that we all have had to rely on the most during this time, it is this one. By remaining agile and flexible as new challenges come about, leaders have been and will be able to see creative, innovative, and potentially unexplored solutions to meet the opportunity head-on. Which leads to the next characteristic…

Creativity: The ability to invite and be open to the perspectives and viewpoints of others to solve a problem or bring a vision to fruition by asking questions. Many of the problems or challenges that leaders are facing at this time are challenges because we, as a business society, have not had to face them before. Employees have not had to create DIY workspaces within 24 hours’ notice. IT departments have not had to ensure the cyber safety of an entire department or company while turning on a dime. And leaders have not had to quickly learn how to lead a remote team, manage productivity, and still ensure deliverables are completed while trying to balance a nose-diving economy. The need for creativity and the ability to see other viewpoints allows leaders to create a landscape that is manageable for both themselves and their employees.

Visionary: Seeing and planning a future state using the data at hand and forecasting possibilities. Sharing the vision with others and inspiring action toward it.

Bravery: Facing the challenge or difficulty head-on. Speaking up for what is right during opposition and is not afraid to admit when they don’t know the answer. To say that this pandemic has required a certain amount of bravery would be an understatement. Many leaders have found themselves needing to make difficult, potentially unpopular decisions to ensure the survival of their business and the safety of their team. Those decisions require a sense of bravery, as leaders often open themselves up for further criticism. Maintaining a brave face (even if you don’t always feel that way) can instill the necessary confidence in your team to keep moving.

Humor: Bring on the fun! The ability to bring laughter and light-heartedness to a situation is important. As anxiety and stress are heightened for most (if not all) employees at this time, the ability to appropriately infuse humor into a tense situation can be integral to keeping a team moving forward.

While these characteristics might be behaviors you bring to the table, it’s important to discern whether they are top strengths that you easily and consistently apply, or if you only use them once in a while. In times of stress, this answer becomes evident based upon your reactions. Were you, as a leader, able to remain creative and explore new solutions? Are you able to maintain bravery, even when many future events are uncertain?

Consider using this time for self-reflection awareness and determine development opportunities to further engage your top strengths. Ask yourself, “How will this crisis make me better?” and “How can I best help others during this time?” as a guide. Be a model of self-care and self-awareness for your team members, so the entire team can be resilient through the storm you’re navigating together. Additionally, invest in developing these strengths and values over time to optimize your effectiveness. This challenge, unique and unprecedented as it may be, can help you continue to mold and practice many of the characteristics that you will need to succeed.

And as with any self-awareness and development activity, it’s important to get feedback from the team on how you and the rest of the team are doing in applying these strengths. Designing and conducting a quick survey will help gather these insights. Additionally, Gallup created this quick audit to help leaders determine if their leadership approach through COVID-19 is meeting the needs of their team members. An HR Professional or Leadership Coach can help with the execution of an assessment, survey, and development plan specifics to support your growth in leadership effectiveness through COVID-19. Ensure the captain(s) are taken care of during this time to effectively steer the ship into the “new land of opportunity.”

Executive/Leadership development will impact the bottom line for your business. It’s more important than ever to optimize your operations during the pandemic. Strategic HR can help with your leadership and HR strategy through COVID-19. For more information, please visit our HR Strategy and Training & Development pages, or simply contact us – we’d love to hear from you.

What Unemployment Benefits Are My Employees Eligible for Given the Changes Due to the Coronavirus?

Last Updated October 6th, 2021
in Benefits & Compensation, COVID-19

HR Question:

What unemployment benefits are my employees eligible for given the changes due to the coronavirus?

HR Answer:

As the Coronavirus (COVID-19) outbreak continues to evolve, businesses are evaluating how to continue operations amidst a myriad of challenges. Strategies such as implementing telecommuting programs, enforcing fully remote workspaces, eliminating business travel and limiting visitors are all efforts to protect employees and limit the spread of the virus while still conducting business. However, some employers are facing significant financial hardships causing them to reduce work hours, eliminate shifts, or permanently lay-off workers to ease their financial burdens. In light of these challenging times, it’s important to know what benefits may be available through unemployment benefits.

State of Ohio – Unemployment Benefits Overview

Eligibility for Unemployment Benefits

According to the Ohio Department of Job and Family Services (ODJFS), to qualify for unemployment benefits, the following four key factors must be met:

You are “totally” or “partially” unemployed at the time you file your application.
- Totally Unemployed – You performed no services for your employer, and no earnings or income are payable to you during the week you apply for benefits.
- Partially Unemployed – Your employer let you go before the end of your usual work week, or reduced your work hours to less than your full-time work week AND you earn less than the unemployment weekly benefit amount.
You worked enough weeks and earned enough money in “covered” employment during the “base period” of your claim.
You are unemployed through no fault of your own.
If you had a prior benefit account, you reestablished yourself as a worker by performing enough work since the prior account began.

Minimum Number of Weeks

You must have worked at least 20 weeks in covered employment during the base period. If you worked for more than one covered employer during the base period, you may still be eligible.

Minimum Earnings

If an application is filed in 2020, you must have an average weekly wage (before taxes or other deductions) of at least $269.00 during the base period.

Filing Requirements

Claimants must file for a week of unemployment benefits no later than three weeks (21 days) after the Sunday date of the week being claimed. Claims for benefits filed beyond this time limit will be disallowed unless you can establish that the late filing was for reasons beyond your control.

Coronavirus – State of Ohio Emergency Declaration

An executive order issued by Governor DeWine expands flexibility for Ohioans to receive unemployment benefits during Ohio’s emergency declaration period.

Temporary Shut-Down of Business

The emergency declaration expands flexibility for employees to receive unemployment benefits should the COVID-19 result in a temporary shut-down of an employer’s business. Additionally, benefits will be available for eligible individuals who are requested by a medical professional, local health authority, or employer to be isolated or quarantined as a consequence of COVID-19, even if they are not actually diagnosed with COVID-19. In addition, the waiting period for eligible Ohioans to receive unemployment benefits (generally one week) will be waived.

Reduced Work Schedules/Partial Unemployment

If COVID-19 results in a reduced work schedule to less than your full-time work week AND you earn less than the unemployment weekly benefit amount, you may be eligible for benefits. All income including payments other than wages (severance pay, vacation pay, workers compensation, among others) would be deducted from the weekly unemployment benefit.

Permanent Layoff

If an employer lays off employees due to the loss of production caused by the coronavirus, employees will be eligible for unemployment insurance benefits if the employees are otherwise eligible. An executive order issued by Governor DeWine expands flexibility for Ohioans to receive unemployment benefits during Ohio’s emergency declaration period.

Employees Facing Mandatory Quarantines

If an employee is in mandatory quarantine because of suspicion of having the coronavirus, the executive order issued by Governor Dewine states that employees who are quarantined are considered to be unemployed, and therefore may be eligible to receive unemployment benefits.

Employee Imposes a Self-Quarantine

If an asymptomatic employee imposes a self-quarantine because of the coronavirus, in most cases they will be ineligible for unemployment benefits. Unemployment benefits are available to individuals who are totally or partially unemployed due to no fault of their own. In this example, the individual – not the employer – is choosing not to work and, therefore, would be ineligible. However, the facts of each circumstance are important. If the employer allowed this individual to telework, they would not qualify for benefits because they would not be unemployed. If the employer required the individual to stay home but did not offer telework, the individual might be eligible for benefits if they meet the monetary and weekly eligibility criteria.

How to Apply

In Ohio according to ODJFS, there are two ways to file an application for Unemployment Insurance Benefits:

Online: File online at http://unemployment.ohio.gov, 24 hours/day, 7 days/week.
Telephone: Call toll-free 1-877-644-6562 or TTY 1-614-387-8408, (excluding holidays) Monday through Friday 8 AM – 5 PM.

NOTE: The Ohio Department of Job and Family Services (ODJFS) is instructing Ohio employers planning layoffs or shutdowns as a result the coronavirus (COVID-19) pandemic to share the following mass lay-off number with their employees to speed the processing of unemployment benefits: 2000180. The agency also is providing instructions for employers to share with their employees about how to apply for benefits.

To stay on top of updates to the evolving decisions surrounding unemployment benefits related to COVID-19, visit the ODJFS Coronavirus and Unemployment Insurance Benefits FAQs.

State of Kentucky – Unemployment Benefits

Similar to Ohio, Kentucky provides weekly unemployment benefits ranging from $39 to $552 per week dependent upon a claimant’s past wages. Governor Andy Beshear is adjusting some of the rules to unemployment benefits in light of the COVID-19 pandemic and the state of emergency he declared on March 6, 2020. Some of the changes include:

Waiving the seven-day waiting period to obtain unemployment insurance benefits
Waiving work search requirements while the state of emergency is in effect

Employees who have been laid off because of the new coronavirus or whose hours have been cut are also encouraged to apply for benefits. Those quarantined may also be eligible. If approved, the first payment would be for 14 days of benefits, an increase from the usual one week.

Per Kentucky state law, those who qualify for unemployment benefits are not given them for the first week of their eligibility, but Governor Beshear’s order waves that provision according to the Louisville Courier Journal.

To learn more about Kentucky unemployment benefits or to apply, visit the website at www.kcc.ky.gov or call (502) 875-0442.