Employer Law Report

Time to review COBRA compliance

COBRA compliance is an area that, for many employers, is on auto-pilot. Many employers rely on outside consultants to administer COBRA and need not put much focus on COBRA time limits for electing and paying for coverage. One of the many ripples from the COVID-19 pandemic is a need to check on your method for COBRA compliance. The economic crunch from the pandemic has resulted in layoffs, furloughs, and terminations, many of which were COBRA-triggering events.

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New OSHA Guidance: Employers must decide if an employee’s COVID-19 is work-related

If an employee tests positive for or is diagnosed with COVID-19, must that be recorded as a work-related illness on Occupational Safety and Health Administration (OSHA )records? OSHA says COVID-19 is a work-related illness if the virus is contracted at work. That can be very difficult to determine. Employers should not presume a COVID-19 event is work-related unless there are clear facts to support that conclusion.

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COVID-19 detection testing: You shall not pass (unless you pass the test)

The U.S. Equal Employment Opportunity Commission (EEOC) has released guidance allowing employers to test employees for COVID-19 under certain circumstances. Specifically, the guidance posed, and answered, the following question:

May an employer administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) before permitting employees to enter the workplace? 4/23/20

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EEOC updates guidance on addressing health risks of COVID-19 vulnerable employees who do not ask for accommodation

Businesses are beginning to reopen across the country, and as employees come back to work, employers are considering to what extent they can protect vulnerable employees who continue showing up for work in spite of the risk posed by COVID-19. The U.S. Equal Employment Opportunity Commission (EEOC) recently released guidance to address this question.

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Individual eligibility for Pandemic Unemployment Assistance benefits

The CARES Act enacted a new Pandemic Unemployment Assistance (PUA) program for those who have been laid off or furloughed. PUA funds are administered through the state agencies that manage the state unemployment insurance programs, and are funds that eligible individuals receive on top of their state unemployment insurance benefits. Because state reopenings are ongoing and ever-changing, and because PUA eligibility is determined on a weekly basis, understanding which employees can take advantage of these benefits is key.

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COVID-19 return to work considerations: Navigating the reopening process

Many states are releasing their plans to reopen businesses and lift stay-at-home orders. There are many important considerations for employers to take into account while planning their return to work. Porter Wright’s Labor & Employment Department developed a checklist of issues to consider for a safe and productive return to work. You can find that checklist here.

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Think twice before hitting “record”

It is simple enough: press record and you can easily share your internal video conference call, re-watch it later, or forget it and move on. You move on until you receive a discovery request or a subpoena for information if the company is sued. Now, your internal video call is discoverable and may be seen by those outside your intended viewership.

My colleagues Abby Chin and Molly Crabtree delve into this issue on the Technology Law Source blog.

Completing the Form I-9 when COVID-19 prevents renewal of your employee’s identity document

The Department of Homeland Security (DHS) issued a COVID-19 temporary policy for List B identity documents when completing a Form I-9 for a new hire. As a reminder, the Form I-9 Employment Eligibility Verification requires the employer to verify the identity and employment authorization of employees not later than three days after the first day of employment. List A includes documents that establish both identity and employment authorization. List B includes documents that establish identity. List C includes documents that establish employment authorization. The employer must physically examine one document from List A or a combination of one document from List B and one document from List C to verify both identity and employment authorization. The employer records information from the documents in Section 2.

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Employer responses to union organizing efforts during the COVID-19 pandemic

It is difficult to imagine another time when uncertainty and concern in the workplace have been at a higher level. The COVID-19 pandemic has led many states to issue stay-at-home orders, mandating that non-essential businesses shutter and implement telework and essential businesses operate under restrictions. As states “reopen” essential and non-essential businesses, employees will be called back to workplaces different than the ones from which they were furloughed or laid off. There will be new rules and restrictions, new working conditions and, in some places, a new concern about workforce reductions for economic reasons. Workers’ concerns about job security, safety and working conditions are a prime target for union organizing.

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