30 Nov

November 2020 Federal HR Updates

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Department of Labor (DOL) Issues New COVID-19 Guidance for Employers

What happened?
On November 7, 2020, the DOL released two documents outlining common workplace inspection citations regarding COVID-19.

What are the details?
The first document (Common COVID-19 Citations) provides a robust list of all frequent employer citations pertaining to onsite inspections by the DOL. This document includes a thorough breakdown of each violation.

The second document is a one page summary of the first document with concise violation details.

The announcement also includes a reminder that the Occupational Safety and Health Administration (OSHA) conducts on-site consultations that are zero cost and confidential for small to medium-sized businesses. This program helps identify workplace hazards, provides advice for OSHA compliance, and assists in establishing and improving safety and health programs.

As of November 19, 2020, the amount of complaints filed in the healthcare industry is more than the combined total for all complaints filed by the Retail Trade, Grocery Store, Construction, General Warehousing and Storage, and Automotive Repair industries. Overall, OSHA citations have totaled $2,496,768 since the end of October. The largest individual employer fine is around $20,000.

Resource Links

What do employers need to do?
Employers should review the provided guidance to guide their decisions in the workplace. This guidance is extremely useful for employers who are worried about OSHA inspections and citations. As a recommended best practice, employers should review this resource for further knowledge and awareness.

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CDC Modifies Guidance for Critical Infrastructure Employers

What happened?
On November 16, 2020, the Centers for Disease Control (CDC) modified its guidance for “critical infrastructure” employers on whether they can permit asymptomatic workers to continue to work after exposure to an individual with a suspected or confirmed case of COVID-19.

What are the details?
Since the start of the pandemic, the CDC had allowed critical infrastructure employers the ability to keep employees working in the workplace if they were asymptomatic, given the employer adhered to specific practices. The CDC has since modified its stance to reflect the option to have asymptomatic employees working as a last resort. Asymptomatic employees should only be working if a cessation of operation of a facility may cause serious harm or danger to public health or safety. Serious harm to a business’s ability to continue to operate is not adequate justification.

The CDC is recommending employers cross-train employees to eliminate single points of failure by relying on trained employees to fill in as needed, while spreading out critical functions among equally skilled and available workers.

An article going over these changes in more detail can be found here.

What do employers need to do?
Employers working in any of the industries identified as critical infrastructure should review the above guidelines and update their workplace policies to ensure the absence of key employees will not devastate company operations.

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Office of Federal Contract Compliance Programs Issues Final Rule Regarding Procedures for Resolving Employment Discrimination

What happened?
On November 10, 2020, the Office of Federal Contract Compliance Programs (OFCCP) issued a final rule on procedures to resolve potential employment discrimination.

What are the details?
The Department of Labor published this final rule to codify procedures that the OFCCP will use to resolve potential discrimination and other material violations of the laws and regulations administered by the OFCCP that applies to federal contractors and subcontractors, add clarifying definitions to specify the types of evidence OFCCP uses to support its discrimination findings, and correct the title of the OFCCP’s agency head.

The final rules include new information and changes to the following subjects:

  • Predetermination notices;
  • Notice of violation;
  • Expedited conciliation options;
  • Evidentiary standards;
  • Disparate treatment and disparate impact; and
  • Practical significance

The changes to the “evidentiary standards” is significantly impactful as identified by the OFCCP. The use of two standard deviations to identify potential discrimination in hiring practices. Law firms like Littler Mendelson P.C. have argued that federal contractors can reasonably operate with their hiring practices showing a standard deviation of up to three, by showing supporting evidence. This has happened in cases of disparities in selection rates.

An article by Littler Mendelson P.C. going over each of the changes in depth can be found here.

Find the final rule in the Federal Register here

What do employers need to do?  
Federal contractors should review these changes and hiring data to ensure compliance with the new OFCCP standards.

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Immigration and Customs Enforcement Announces Extension to I-9 Compliance Flexibility.

What happened?
On November 18, the U.S. Immigration and Customs Enforcement (ICE) announced an extension of the flexibilities in rules related to Form I-9 compliance.

What are the details?

On March 19, 2020, due to precautions implemented by employers and employees associated with COVID-19, the Department of Homeland Security (DHS) announced its goal to exercise prosecutorial discretion to defer the physical presence requirements associated with the Employment Eligibility Verification (Form I-9) under section 274A of the Immigration and Nationality Act. This policy applies to employers and workplaces that are operating remotely. If employees are physically present at a worksite location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification.

This extension will end on December 31, 2020.

The extension announcement can be found here.

The original announcement of the I-9 flexibility can be found here.

What do employers need to do?
Employers who have been using the provided flexibility may continue to do so.

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The DHS Proposes New H-1B Visa Rule

What happened?
On November 2, 2020, the Department of Homeland Security (DHS) issued a notice of proposed rule making to replace the random selection process with a one that prioritizes H-1B petitions with the highest wage levels.

What are the details?
Should this rule be implemented it would drastically change the way that H-1b visas are selected. DHS is promoting the idea that elimination of the random selection process will make it possible for petitioners to improve their chances of selection by agreeing to pay higher wages to H-1B workers. The rules are open to public comment until December 2, 2020.

An article going over this proposed rule can be found here.

The proposed rule can be found here.

What do employers need to do?
Employers who utilize this visa should monitor this proposed rule, as it may affect their ability to use the visa in the future.

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