by Carolyn Kick | Nov 12, 2021 | COVID-19 Resources
On November 4th, 2021, OSHA released its high-anticipated emergency temporary standard (ETS), commonly referred to in the press as the vaccine mandate. The general aim of this new standard has been known for some time, but, with the specific details finally available, employers are rushing to ensure that they are prepared to meet its requirements. The foundational argument of the ETS is that OSHA considers COVID-19 infection to be a grave danger to employees, so they’re establishing minimum vaccination, testing, and face covering requirements to address this.
Unsurprisingly, this new standard has been met with several legal challenges, but employers cannot afford to wait for an order from the court of appeals to begin preparing for compliance. Here’s what you need to know:
Key Deadlines
The ETS technically went into effect immediately upon its publication in the Federal Register on November 4th, however, enforcement of the standard doesn’t begin until December 6th, 2021. On that day, all provisions of the ETS come into effect except for the testing requirement (more on this below). The testing requirement will be enforced on January 4th, 60 days after publication.
Which Employers are Impacted?
The standard applies to all U.S. employers with 100 or more employees. OSHA’s rationale for the 100-employee threshold is that larger employers “have the administrative capability to implement the standard’s requirements promptly” but are less confident that smaller employers can do so without disruption. This means that two-thirds of all private sector workers in the nation, including those working in the nation’s largest facilities where the deadliest outbreaks occur, will be better protected from infection.
The only 100+ employee workplaces exempted from this policy are those already complying with one of two similar standards: 1) the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors, or 2) the Healthcare Emergency Temporary Standard.
Some individual employees at these companies may be exempt, however. This includes employees that don’t report to a workplace where coworkers or customers are present, as well as employees who exclusively work from home or outdoors.
Employer Vaccination Policies
All employers are required to develop and implement a policy that either requires all existing and new employees to be fully vaccinated, or allows each employee to choose between vaccination or providing proof of weekly testing and wearing a face covering.
Employers are also required to determine the vaccination status of every employee and keep “an acceptable proof of vaccination and roster of each employee’s vaccination status”. These records must be kept and considered as employee medical records for the time that the ETS is in effect.
OSHA has provided sample policies on its website for reference.
What Counts as “Acceptable Proof of Vaccination”?
Here is the list provided by OSHA:
- Record of immunization from a health care provider or pharmacy
- Copy of US CDC COVID-19 vaccination record card
- Copy of medical records documenting the vaccination
- Copy of immunization records from a public health, state, or tribal immunization information system
- Copy of other official documentation containing type of vaccine, date(s) of administration, and name of health care professional or clinic administering the vaccine
- Signed and dated attestation ONLY where employee has lost or is otherwise unable to produce other acceptable proof
What are the Requirements for Unvaccinated Employees?
Employers that opt to implement a policy with a testing option must require each non-exempt employee who is not fully vaccinated to (1) be tested at least once every 7 days, and (2) provide proof of test results to the employer no later than 7 days after they last provided a test result.
In some instances, an employee might be away from the workplace for longer than a week, and they are not required to provide test results during that time. However, they must be tested within a week of returning to the workplace and must provide the results of that test upon return.
Employer Support for Vaccination and Testing
The ETS requires employers to provide employees up to four hours of paid time off to receive each vaccination dose, as well as reasonable time and paid sick leave to recover from any side effects experienced.
Under the ETS, employers are not, however, required to pay for any costs associated with testing, although they are not prohibited from doing so.
Exemption from Testing
The only instance provided by the ETS where an unvaccinated non-exempt employee will actually be exempt from complying with their company’s testing policy would be if they test positive for COVID-19 or are positively diagnosed by a licensed health care provider. In that situation the employee would be exempt from regular testing for 90 days.
Can State or Local Laws Overrule the ETS?
Barring a permanent injunction or Supreme Court ruling, the ETS is written specifically such that it preempts any state or local laws.
by Carolyn Kick | Sep 13, 2021 | Compliance, COVID-19 Resources, Return to Work
- Ensure that 100% of their workforce is vaccinated against the COVID-19 virus, with any of the emergency or fully FDA-approved vaccines; OR
- Receive a weekly negative COVID-19 test result from all unvaccinated employees prior to coming to work.
In addition to this vaccination and/or weekly testing requirement, employers must also provide paid-time off benefits for the time needed to get tested and post-vaccination recovery, if necessary. OHSA should release its ETS in the coming weeks, outlining the specifics of this new ruling and how to comply with its requirements, including information on payment responsibility for vaccinations and testing and the timeline for implementation.
There are many compliance concerns raised by this plan under ERISA, HIPAA, certain wellness program rules, and other regulations that will need to be contemplated by employers. Upon OSHA’s issuance of the ETS, we will provide further guidance and information on compliance with the requirements. We also recommend you reach out to your legal counsel for assistance. If you are a large employer and would like to discuss the above requirement in more detail or if you are a healthcare entity, federal contractor, or federal government employer and would like information on how the other pieces of this plan apply to you, please visit https://www.whitehouse.gov/covidplan/ or contact Launchways directly for additional HR and compliance support.
by Carolyn Kick | Aug 12, 2021 | COVID-19 Resources, Future of Work, Uncategorized
On July 26th, the 31st anniversary of the Americans with Disabilities Act (ADA), President Joe Biden announced that individuals coping with long-term symptoms from COVID-19 may be eligible for disability protections under the ADA and the Family and Medical Leave Act (FMLA), so what does this mean for employers?
Health experts are still learning about “long-COVID”, officially dubbed Post-Acute Sequelae of Sars-Cov-2 Infection, and the medical community’s understanding of the condition is continuing to evolve as more information comes in. The CDC website lists the following as the most common post-COVID symptoms:
- Difficulty breathing or shortness of breath
- Tiredness or fatigue
- Symptoms that get worse after physical or mental activities
- Difficulty thinking or concentrating (sometimes referred to as “brain fog”)
- Cough
- Chest or stomach pain
- Headache
- Fast-beating or pounding heart (also known as heart palpitations)
- Joint or muscle pain
- Pins-and-needles feeling
- Diarrhea
- Sleep problems
- Fever
- Dizziness on standing (lightheadedness)
- Rash
- Mood changes
- Change in smell or taste
- Changes in period cycles
In his July 26th announcement, Biden said that “many Americans who seemingly recover from the virus still face lingering challenges like breathing problems, brain fog, chronic pain and fatigue. These conditions can sometimes…rise to the level of a disability.”
Employers are advised to treat all requests for accommodation or leave involving long-term COVID-19 symptoms in the same manner they would for any other non-obvious impairment or disability.
If an employee is seeking FMLA leave – either intermittent or as an interval of time, employers should take the following steps to decide how to proceed:
- Determine if the employer covered by FMLA
- If so, determine if the employee qualifies for FMLA. Consider that the employer must have 50 employees within 75 miles of the employee’s worksite, and the employee must have been employed at least 12 months and must have worked a minimum of 1250 hours in the past 12 months.
- Provide the employee with a Notice of Eligibility and Rights & Responsibilities, Form WH-381, even if they are not eligible for FMLA leave.
- If the employee is determined to be eligible for FMLA leave, the employer should request healthcare certification showing that the claimed disability qualifies the employee for FMLA protection.
- Employees seeking leave due to their own symptoms should be provided with Form WH-380-E, and employees seeking leave to care for a family member should be provided with form WH-380-F.
- A Designation Notice, Form WH-382, should be used to either denominate the leave as FMLA leave or to serve as notice to the employee that the leave is unapproved or additional information is required.
If the individual is seeking ADA Accommodations for long-haul COVID-19 symptoms, the employer should consult with the individual to determine what their exact limitations are and what accommodations are being sought. Keep in mind that the ADA requires the employer to make reasonable accommodations for employees, as well as applicants for employment, who have disabilities.
The ADA does not provide a checklist of conditions that are covered, so instead the employer will need to conduct an individualized assessment to determine if the person has a disability as defined by the ADA. In this context a disability is defined as any impairment that substantially limits major life functions.
Guidance issued by the Department of Justice (DOJ) and Health and Human Services (HHS) on July 26th stated that the phrase “substantially limits” should be interpreted broadly and should not require in-depth analysis.
The employer should then request the individual to have their healthcare provider submit written confirmation of:
- The extent that a disability will substantially limit the individual’s major life functions, including the nature of the disability, its severity, and the anticipated duration of the disability.
- Their assessment of the individual’s ability to perform the essential functions of the position, with or without reasonable accommodation.
- What accommodations the provider believes should be provided that would allow the individual to perform the essential functions of the position safely.
If it becomes clear that the individual does have a disability, the employer should continue to engage with the individual to determine appropriate accommodations. The individual is not granted the ability to dictate which accommodations are provided under the ADA, but it is in the best interest of all parties that they reach an agreement on this subject.
Employers should also keep in mind that reasonable accommodations are not required under the ADA if they would cause an undue hardship on the business, and that long-term effects from COVID-19 don’t always qualify as a disability under the ADA.
It is important employers fully understand the scope of the laws’ coverage in order to be prepared to handle any potential situation. No matter the outcome, employers should always carefully document every step throughout this process and be sure to communicate clearly with the individual seeking accommodations.
by Carolyn Kick | Jun 30, 2021 | Compliance, COVID-19 Resources
The coronavirus pandemic has proven a broad and nearly universal view that American’s relationship with technology will deepen, including their ability to work from almost anywhere.
If you work remotely in the same state as your business location, you can follow the same state laws for income taxes and employment taxes. But as a remote employee, you need to weigh in the tax implications of cross-border work arrangements.
Below are the laws and taxes considerations to make as a remote employee working abroad:
Be Aware of Your Tax Obligations
You will want to consider your current tax situation and see how it may change if you leave the country. While the U.S. tax code applies to all tax citizens and green card holders no matter how long they live and work remotely outside the United States, some exclusions are available.
You may qualify for a foreign tax credit or the Foreign Earned Income Exclusion (FEIE), which lets you reduce or eliminate all or a portion of your foreign earned income (up to $108,700 from U.S. taxes). This exclusion is not valid for passive, or investment income such as interest and dividend and only includes earned income, such as:
- Salary
- Wages
- Bonuses
- Commissions
- Self-employed income
Generally, many countries have bilateral tax treaties which prevent you from paying tax on the same thing twice.
Determine Your Primary Residence or Tax Home
Before you qualify using the credit or FEIE, it’s crucial to make sure your tax home is outside the United States.
For instance, countries like Portugal will let you claim to be their tax resident if your primary residence is registered there, and you stay for 183 days or more in any tax year. On the other hand, the U.K. implements a “Statutory Residence Test,” which considers the amount of time you spend and work in each tax year, separately.
According to the IRS,
- Your tax home is the general area of your principal place of business, employment, or post of duty, regardless of where you maintain your family home
- Your tax home is the place where you are permanently or indefinitely engaged to work as an employee or self-employed individual.
- Having a “tax home” in a given location does not necessarily mean that the given location is your residence or domicile for tax purposes.
- If you do not have a regular or main place of business because of the nature of your work, your tax home may be the place where you regularly live.
- If you have neither a regular or main place of business nor a place where you regularly live, you are considered an itinerant, and your tax home is wherever you work.
As U.S. citizens, the foreign income exclusion comes into effect only if you spend at least 330 days of the tax year abroad, not including time on planes. Then, if you qualify, you can use Form 2555 to figure your foreign earned income exclusion and your housing exclusion or deduction.
Comply With Foreign Reporting Requirements
Many digital nomads and expats may also be subject to additional tax reporting, such as filing a Foreign Bank Account Report (FBAR).
An FBAR reports your money that resides in offshore bank accounts. Any U.S. tax resident with a foreign account balance of $10,000 or more during a specific tax year needs to file an FBAR.
This account balance is calculated in its totality, which means it is a sum of all your foreign bank accounts. Individuals who have signing authority for an overseas account or a joint account also need to file an FBAR.
FBAR is filed individually to the Dept. of Treasury and submitted electronically through the BSA e-filing site.
Know Regulations Around State Taxes
Certain U.S. states require ‘verified’ state residents who work outside to pay state taxes, or they have to prove they are no longer state residents. For example, the state of Colorado requires proof of non-resident status, and other places such as California need you to pay state taxes even if the federal government has certified you as a foreign resident.
If you plan to work abroad, this can be a problem for many reasons. In some cases, owning personal property such as a car or even a library card can make you liable to pay state income tax.
That’s why know more about state taxes and/or relocate to a low or no-tax state before you depart, rather than being caught unaware by years of unpaid penalties.
Self-Employment Taxes
Whether in the U.S. or abroad, if you have an employer, they are required to pay social security and Medicare for you. But as a self-employed digital nomad, you may be liable for SECA (Self-Employed Contributions Act), based on your country of residence.
However, you may be exempt from SECA tax if the U.S. has a Totalization Agreement with the country you are residing in. Under this agreement, SSA will account for your periods of U.S. coverage that qualify for benefits under the social security program of an agreement country.
Depending on your situation and the period spent in a foreign country, you may have freed yourself of commutes, but knowing your tax obligations will help you navigate through the complexities of U.S. taxes no matter where your work takes you.
by Carolyn Kick | May 13, 2021 | COVID-19 Resources, Employee Benefits
As we enter the halfway point in the year following the year of the pandemic, by now most of us are familiar with the term “return to work.” Many businesses have brought their employees back to the workplace, while some have adopted a more hybrid model of maintaining some people on-site and allowing others to remain remote work employees.
Even though we have begun to return to a pre-COVID way of life, the way of 2021 is not the same as that of 2019. According to writer, Amy Quarton, “Trying to make the workplace what it used to be before the pandemic is not only impractical and untenable for many reasons, it is just as (if not more) disruptive than the initial work-from-home transition.”
Post-Pandemic Employee Benefits Trends
The way employees view benefits has changed. Some benefits that were high priority a year and a half ago are no longer as important as they once were, while benefits that may have seemed unnecessary or less important have made their way to the top of the priority list for many employees.
Reporter, Kristen Beckman states, “This shift in the work environment is an ideal time for employers to begin thinking about how they want to work with employees to help them recover financially and emotionally from the disruptions and stress of the pandemic.”
With this new perspective on benefits in mind, here are a few that will have an impact on how employee benefits evolve moving forward.
Employee Financial Health Benefits
For most employees, the financial impact brought by the pandemic was heavy. While some were fortunate enough to have retirement or emergency savings to fall back on, they likely had to use a good portion of those funds to maintain their lives. According to Beckman, “The resulting financial instability can cause a strain on employees that can impact productivity especially at a time when they are transitioning back to work.”
Here’s what we are seeing as a result:
- Increasing numbers of providers are offering education and coaching, budgeting and savings tools, and financial advising and planning.
- Various emergency savings programs are now offered by payroll vendors, retirement plan providers, and others, but no matter the vendor, the key feature is easy employee access to those funds.
- Typically administered through a third party, student loan repayment assistance benefits are enabling employers to make regular contributions directly to workers’ student loan servicer.
More Benefits Options
For several employees, there was a realization of just how flexible the workplace could be when businesses were forced to begin working remotely. Flexibility in the workplace and having more options provides the employee to have more control of their daily life and the work/life balance.
Here’s what we are seeing as a result:
- Flexible work hours ”will likely be made widely available and be in high demand as physical workplaces reopen,” writes Quarton, and many new scheduling tools have been launched to help employers maintain social distancing.
- The most helpful option for addressing mental health is to offer better insurance coverage for mental health care. Other options include adding more visits via EAPs and providing apps for meditation, mindfulness, and stress relief.
- Help with caretaking includes reimbursements for or assistance finding daycare, elder care, after-school care, remote tutoring, remote safety monitoring, and more.
- Vendors have brought telehealth capabilities not just to computers but to phones, and virtual appointments are remaining an option, post-pandemic.
Tech at the Center
Many have become far more comfortable interacting virtually whether it be through zoom meetings, virtual schooling, and even online court appearances. And while occasional technical difficulties can be problematic, reliance on tech is becoming more and more acceptable and even preferred for many tasks.
Here’s what we are seeing as a result:
- Going virtual can be made interesting and informative with the use of interactive tools such as webinars, virtual booths, and live chats. David Karlin writes that being able to access virtual open enrollment at home “allows family members, like spouses, to be easily included in the decision-making process.”
- “The range of digital health apps, platforms, services, and new products spawned or accelerated by the pandemic can hardly be mapped,” according to writer Dan Cook. Hundreds of employee benefits apps and tools are readily available, with new ones launching weekly for benefits and health monitoring and management, provider and pharmacy searches, 401(k) funds monitoring, wellness tracking, and more.
While some trends will come and others go, one thing we know for sure is that as we continue to define what normal looks like, employers and the benefits they offer to their employees will certainly have a pivotal role.
by Carolyn Kick | Apr 23, 2021 | COVID-19 Resources, Return to Work
The global COVID-19 pandemic that has altered operations for nearly every business in one form or another is finally beginning to subside. Although concerns over continued spread and new variances continues, cases are trending downward and vaccinations are trending upward.
Because of these encouraging trends, many employers are now asking themselves what they should do in terms of getting their employees back to the workplace. Some businesses may choose to permanently allow some or all of their employees to work from home. However, many other businesses are realizing that it’s time to start making plans to bring their remote workers back to the office on a regular basis.
In this post, we’ll discuss some key things that employers should consider as they make decisions and coordinate the logistics of safely bringing employees back to work.
Specifically, we’ll talk about:
- Testing
- Vaccinations
- Public Health Best Practices
- Acknowledging the Adjustment Period for Employees
Testing
Testing for COVID-19 in employees has been a very expensive task for most businesses throughout the pandemic. Most businesses have left the testing to their local health departments and encouraged employees who have felt unwell to go through the standard public testing process rather than providing on-site or direct-to-employee testing. Fortunately, this is changing due to recent advances in rapid testing.
Advancements in our understanding of COVID-19 have led to rapid, at-home antigen tests that can be taken by consumers without requiring a prescription from a physician. These tests cost far less that other testing methods, and provide a much more practical tool for employers to encourage regular employee testing.
Vaccinations
Employers should work with their HR and legal teams to determine how to best encourage or require that employees receive the COVID-19 vaccinations. Some ideas for encouraging vaccination include:
- Be flexible with time off for employees who may need to temporarily leave work to receive the vaccine, or who may need to take time off to take a dependent to get vaccinated.
- Consider providing an extra day of sick leave for employees who experience side effects from receiving the vaccine. If possible, expand this benefit for employees who may need to care for one of their dependents who experiences vaccine side effects.
- Offer cash bonuses or other prizes for employees who choose to be vaccinated.
- Reach out to local health departments to see what educational vaccine materials they have that you could share with employees. This will eliminate the need for staff to create such materials, and you’ll know that the information is accurate.
Public Health Best Practices
Even though the pandemic seems to be nearing its end, the reality is that we will still live in a “new normal,” at least for a period of time. This new normal will require special attention to basic public health best practices to ensure that there is no chance of a late-stage COVID outbreak in your office. Employers should consider the following public health best practices as employees return to the workplace:
- Continue to encourage or require masks at the office. The CDC will most likely continue to recommend that masks be worn for several more months as the pandemic subsides.
- Invest in an improved ventilation system. Studies have shown that buildings with higher quality filtration in their ventilation systems can reduce the spread of COVID-19.
- Encourage hand washing and sanitizing. This can be done by setting up extra hand cleansing stations or putting up signage in restrooms and other common, high-touch areas.
- Promote physical distancing. Consider rearranging the setup of your office so that employees can work at least six feet away from each other throughout the day. If it makes sense given the layout of your office, tape directional arrows on the floor to decrease close interactions as people move around.
As an added bonus, these strategies should also keep employees safe from other illnesses, such as influenza, moving forward.
Acknowledging the Adjustment Period for Employees
Employers should remember how hard the transition was for many employees when they shifted to primarily working from home. The sudden lack of face-to-face interaction with coworkers, the juggling of at-home school for children, and the sharing of office space with spouses were challenging adjustments to make.
Unfortunately, transitioning back to in-office work will most likely come with similar challenges. Consider the following examples that can be anticipated:
- Employees will have to readjust to a daily commute, which can cause stress because of lost time during the day.
- Some employees who are more introverted may have a hard time reengaging themselves socially around the office.
- Simple office norms and etiquette that were long taken for granted might have to be relearned in some workplaces.
- After avoiding gathering of people for so long, there will be some employees who experience anxiety as they return to being physically closer to more people throughout the day.
Employers should ask for feedback from employees to determine other company-specific challenges that employees anticipate with returning to the office. Plans should be made to take appropriate steps to help employees manage these challenges as they readjust to working on-site.
Key Takeaways
The light at the end of the pandemic tunnel is near. Within a few short months, many business leaders will start to encourage or require their employees to return to working in-person at the office. However, there are some key things employers should consider as they make these organizational adjustments:
- Provide rapid, affordable COVID-19 testing for employees.
- Encourage vaccinations by being flexible with time off, offering cash or other prizes for employees who get vaccinated, and curating existing vaccination educational materials. Of course, HR and legal council should be involved with any such program to ensure there are no violations of health privacy laws.
- Implement public health best practices such as requiring masks, improving ventilation systems, encouraging hand washing, and promoting physical distancing.
Remember that there will be an adjustment period before many employees feel fully comfortable returning to the office. Consult with employees to learn what challenges they anticipate with returning to the office, and make plans to help them overcome those challenges as comfortably as possible.
