COVID-19 UPDATE: What Business Owners Need to Know for Fall 2021

Human Resources

September 8, 2021

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COVID-19 UPDATE: What Business Owners Need to Know for Fall 2021

August 8, 2021 / 29:13:00

Jordan Alda Hi everyone, we’ll get started in just one more minute, we’ll give everyone an additional minute here before we

kick off.

Jordan Alda All right, we will get started since the first few slides are just some basic slides introducing our speaker for today and Vensure. And so as others join, that, that is when we will have some communication from John, who will be leading us through today’s presentation.

Jordan Alda So, thank you all for joining. My name is Jordan Alda, Area Vice President of Sales for the Tri-State. And I’d like to welcome you here to today’s webinar regarding COVID-19 updates hosted by VensureHR’s John McFarland. Before I intro- duce you to John, I’d love to introduce you to Vensure and how we support our clients across the country.

Jordan Alda For those not familiar, Vensure is proudly serving over 350,000 employees across our client companies. As the largest privately held PEO, we ensure our clients have access to trusted technology for all aspects within the employee lifecy- cle. Companies leverage our solutions, including items like payroll and tax processing, and top-tier benefits to support their greatest assets: their employees. Today is a glimpse into how we support our clients with keeping up-to-date on ever-changing state and federal regulations.

Jordan Alda I am pleased to introduce John McFarland, SVP of Client Development for VensureHR. He is a graduate of Uni- versity of Phoenix, where he received his degree in business admin, administration. He has over 20 years of human resource and leadership experience and over 14 years in the PEO industry. Before I hand the call over to John, I wanted to confirm that any questions should be posed in the question box within GoToWebinar. We will be addressing any questions at the end. All right, John, take it away.

John McFarland Hey, thank you so much, Jordan, appreciate that. So welcome, everybody. For today’s agenda, I’m going to discuss updates that you may consider for your employee handbook, changes in the workplace, and updates you may want to consider for your travel policies. Next slide.

John McFarland So, first of all, cover some ideas that you may, or things you may want to update in your employee hand- book. So first off, I’m not going to approach this from a specific COVID perspective because the idea behind COVID, you know, knock on wood, hope it turns out into something, in, you know, a lot of epidemiologists are indicating that will probably be like the flu whereby we’re going to live with this forever. And, you know, maybe there’s the annual flu/COVID shot. So what I’m going to discuss is more kind of overarching things to consider in the handbook could, that could help not just with COVID, but flu and colds, and, you know anything else out there from an infection or illness perspective. And, you know just as flu was nonexistent prior to 1918, COVID was non-existent prior to 2019. I’m sure there’s going to be the “ABC/X, Y, Z”, you know, of the future that we haven’t even come across yet.

John McFarland So first and foremost, health and safety in the handbook. New York Hero Act: this is the first piece of leg- islation in the country that really is addressing infectious disease in the workplace. I believe it was two days ago, the governor indicated the exact verbiage that fits the standard as it applies to COVID. So this affects employers in the state of New York. Probably should be in your handbook.

John McFarland General hygiene: You can address general hygiene within your handbook from handwashing, sanitizer utilization, and shaking hands – that’s an unusual one, but that’s come up recent because of COVID. SHRM, which is the Society for Human Resource Management, in a recent survey found that 72% of respondents indicated that they are no longer comfortable shaking hands because of COVID. And this is unusual because shaking hands has been part of the business

deal since the Roman Empire. But it’s not a bad idea to at least discuss it or maybe have it in the handbook, so that employ- ees understand that it’s not them, that it’s just the sign of the times. And perhaps the best approach is, is let the person you’re speaking to make the first move. If they put their hand out, then they’re comfortable shaking hands. If they don’t, they’re not. And that’s okay, it’s not you. It’s just that that’s kind of the sign of the times, that’s what we’re dealing with nowadays.

John McFarland You can also indicate and have protocols on sneeze and cough etiquette within, in, you know, your work- space. During my research found out that sneezes come out at 100 miles an hour on average and coughs come out at 50 miles an, an hour on average. And what’s unique is the gases behind a sneeze will actually cause the droplets to travel up to 27 feet away. So the current standard of, you know six feet of distance of social distancing isn’t it isn’t even enough when we’re dealing with a sneeze. There was also one researcher that found that a sneeze that occurred on the first floor of a building actually carried to the tenth floor through the HVAC system. So, cough etiquette, sneeze etiquette might be something important to, to have in a handbook to indicate how it should be handled. You know, sneeze into a tissue, not your hand, because you’re going to touch things, throw that tissue away, go wash your hands, or use sanitizer. Sneeze or cough into your elbow, completely covering your mouth and nose, not kind of half-covering it because it sprays everywhere.

John McFarland And then vaccines in the workplace. I’ll get into more detail in the coming slides on that.

John McFarland And then some items to consider within your handbook or your leave policies. If you’re, if you’re a covered employer, meaning you have 50 employees or more, you’re subject to Family Medical Leave Act. Have it in the handbook. The New York paid family leave. The requirement in the state of New York. Have the provisions and, and how it works within your handbook. You may have a company-specific leave. If you do, it’s advisable to have it in your handbook so employees under- stand how it works and the details that are behind it.

John McFarland And then sick leave policy. There was a New York City safe, sick leave that has been recently updated to mirror that of the New York paid sick leave. But the New York paid sick leave affects all New York employers. And that was ef- fective of the accruals were in September of last year, and employees were allowed to start utilizing those hours as of January this year. The New York City safe and sick leave has a little bit more nuance to it. It’s important if you’re within the city of New York to look at the New York City safe, sick leave to make sure you’re covering all those aspects. But again, that’s important to have in handbook, so it’s clear to employees what their rights are. And the next slide.

John McFarland So, let’s get into vaccinations. First, I’ll cover it from a federal perspective, and then we’ll cover it from a state perspective. First off, it was, believed it was about May the EEOC published some FAQs. And within those FAQs, they indicat- ed, first and foremost, federal laws do not prevent an employer from mandating vaccinations.

John McFarland Second, they address that federal laws did not prevent an employer from offering incentives to voluntarily provide proof of vaccination. What they did indicate was a caveat that, “don’t make the incentive so phenomenal that it would cause an employee who would otherwise not want to provide that information to do so, because the incentive was so phenom- enal.” For instance, don’t do expense, you know an all-expense-paid trip to the Bahamas for a week, probably too extravagant, but $25 gift card to your local coffee shop, probably okay, just as an example.

John McFarland And then private employers may indicate that vaccinations are required as a condition of employment,
so long as that it’s job-related and consistent with business necessities. As an example, if you’re in health care dealing with patients, it’s very difficult to work with a patient from a distance, it’s difficult to communicate with the patients with masks on, granted in surgery, obviously they do, but they’re usually under. Probably consistent with business necessity for the need for mandate vaccinations. Whereas the opposite would be, I just don’t like germs and I don’t want them in my business space, so therefore I’m going to mandate it, probably not consistent with business necessity.

John McFarland From a state perspective, so just some things that have come up in the news. I was in New York City not that long ago and the state’s position at that time was is, we’re gonna mandate vaccinations, but those that choose not to be vaccinated will be subject to a weekly testing. So, that has since changed. Now, healthcare workers, including those in direct patient care, that could either come in contact with somebody who’s in patient care, volunteer students of covered entities, and it’s specific within the order, are required to have received at least the first dose by September 27 for general hospitals and nursing homes. I don’t see the notification in there anymore that says, “and if you don’t, you’ll just get tested weekly.” It seems like they’ve gone away from that, so the state has changed recently.

John McFarland And then by October 7, for all remaining covered entities. One unique aspect in here that, that an attorney had indicated is this precludes exemption for sincerely held religious beliefs. Typically, sincerely held religious beliefs and med- ical comp, and medical reasons are reasons to not have a vaccination. And this particular order, it precludes that for religious beliefs. It kind of goes hand-in-hand with a Senate bill, that, I believe it was 2994 in New York City when there was a, a measles outbreak. That Senate bill, they precluded the sincerely held religious beliefs from that aspect and got a lot of folks vaccinated for the measles due to that outbreak. And it was all based on, because it’s in the best interest of the public at large.

John McFarland And then New York City requires proof of at least one dose for workers and customers, indoor gyms, you know, or indoor dining, performances, et cetera. So not only those that wish to go eat or go workout at the gym need to pro- vide this proof, but those that work there do as well, and that affects employers. So what does that show? It just illustrates the New York state and municipalities do not prohibit an employer from mandating vaccinations. So where does that leave us? It leaves us with the federal standards, essentially, and case laws that pertains to vaccinations, both of which point to the fact that an employer can mandate a vaccination. And the next slide.

John McFarland So where that leaves us is that, it leaves it as a business decision. So things to consider if you’re consider- ing doing a mandated vaccination, if you’re not part of an order, for instance, if you’re in health care, it’s part of an order. But if you’re not part of an order, first off, reasons for mandating the vaccinations: Is it consistent with business necessity? If so, probably okay to mandate it. What are the policy considerations? When will employees be required to be vaccinated by? 30 days? 60 days? 90 days? What’s your timeframe? What’s acceptable proof? Are you going to just have the employee sign an attestation that says, “Oh, yeah, I’m vaccinated, don’t worry about it. Here you go.” Or are you going to require a copy of the CDC immunization record? And then who’s gonna maintain that documentation, because now you’re dealing with medical documentation for an employee that’s protected under HIPAA.

John McFarland And then, how will requests for sincerely held religious beliefs or medical accommodations be, be handled? It’s advisable that you have a plan for that situation, not address it when it happens, and realize that if it’s under the Health Care Act, it looks like the only option for possible accommodation is for medical accommodations.

John McFarland And then how will you maintain morale? One thing’s for certain, our country is polarized. We’ve got the anti-vaxers, and the pro-vaxers, and some folks that fall in between. Chances are if you have a handful of employees, even in a small organization, you’ve probably got one of each. So no matter what decision you make, you’re probably not gonna make everybody happy, so how you gonna maintain morale? It’s good to have the forethought of how that’s going to be handled before it, is an issue.

John McFarland And then how will you maintain nondiscriminatory actions? As an example, let’s say you have your favorite employee is, is over 60 years old, you love them, you don’t want them to get hurt, you don’t want them to get COVID, so you say, “Hey, work at home.” Well, that employee may hate working at home. Maybe they have a spouse that nags them. Maybe the neighbor kid plays the drums all day and they can’t concentrate. A lot of the information that we receive from the employ- ees that, that feel forced to work at home are that, “I’m no longer in the office. I’m not contributing. I’m not there to make im- portant decisions and I’m off their radar, so the chances of me and advancing within the organization are now limited.” So, that could be considered discriminatory if they don’t have any desire whatsoever to work at home. They may be fully vaccinated and they’re perfectly fine being in the workplace. So be cautious of having a heart, if you will, to make a decision for somebody that maybe they don’t want, as an example. And then next slide.

John McFarland So next, we’ll discuss changes in the workplace. So first off, we have the general duty clause. Now, what the general duty clause under OSHA states is that it requires employers to provide their employees with workplace free from recognized hazards likely to cause death or serious physical harm. A serious violation per case is $13,653 maximum. Willful or repeat violations per incident could be as high as $136,532.

John McFarland In a recent article back in April, it indicated that OSHA is focused on four main areas. One is workplace violence. Second is musculoskeletal or ergonomics. Third is general housekeeping like slips, trips, and falls. And the fourth is COVID-19. So the test for the general duty clause with respects, with respect to did an employer violate it, are the following four items. And when I read these, think of COVID. Number one, the employer failed to keep the workplace free of a hazard in which employees were explo, were exposed. So, when you apply COVID to that, could that be proved? Yeah, probably. The hazard was recognized. Yeah I think, for the most part, we all recognize what COVID is. The hazard was causing or was likely to cause death or serious physical harm. Yeah, as, as we know it, over 600,000 Americans have died from COVID. We know what hap- pens. And then fourth, a feasible and useful method to correct the hazard was available. We know what those methods are.

So could an employee contact OSHA and prove that an employer has violated the general duty clause with respect to COVID? Chances are they probably could. Next slide please.

John McFarland So additional changes in the workplace. First off, the I-9 flexibility. That was set to expire at the end of August and it has been extended through December 31, 2021. What’s important here to understand is that if the employee

is remote, because of COVID, because of safety requirements due to COVID, et cetera, then you can utilize this. This doesn’t pertain to if you have a work-from-home arrangement that’s permanent, that, that doesn’t apply in that situation. So make sure it’s applied properly if, if you are taking advantage of that.

John McFarland Second is the Families First Coronavirus Response Act response act or FFCRA. That was extended in the Consolidated Appropriations Act through the end of second quarter, and then it was further extended under the American Rescue Plan Act through September 30th. In 2021, it is a choice. It is not mandated like it was in 2020. But those tax credits are still out there. If you have an employee that fits the criteria, and now there is nine criteria because they added vaccinations, illness due to vaccinations, and then, you know helping a family member that had an adverse reaction or such from a vaccina- tion as reasons to qualify.

John McFarland Third, COBRA subsidies. COBRA subsidies were provided to what was referred to as assistance-eligible individuals, or AEIs, effective April 1st through September 30th. That was any employee that was subject to either federal CO- BRA or states’ mini-COBRA, during that date range. There were required disclosures that needed to be provided, be provided and we’re coming up towards the end of that period, so anybody who is on COBRA, or mini-COBRA that is still elig, eligible beyond September 30th are going to need to have a doc, a document provided to them that indicates you are about to lose your COBRA subsidies as of September 30th. Not that they’re no longer eligible for COBRA, but the subsidy aspect. And that subsidy indicates that the employer is required to pay those premiums and then they can recoup those dollars by way of a tax credit.

John McFarland For this payroll protection program, a very popular program, it did expire May 31, but there’s many employ- ers out there that are still utilizing their first or second PPP funds and/or dealing with a PPP forgiveness application.

John McFarland And then, then the final item is employer retention tax credit. I would have bet the farm that the PPP, too, would have been the talk of the town for 2020. I absolutely would have lost the farm this year because ERTC has absolutely ris- en to the top. The ERTC at present is set to expire December 31st. However, under the Infrastructure Investment and Jobs Act that’s currently in Congress, it was approved by the Senate, it’s being looked at by the House. Within that, it indicates that the ERTC would no longer be available for Q4 2021. So assuming that goes through and it does not get changed, then that means that Q3 ERTC ends except for anybody who fits the criteria of a recovery startup business. And the next slide.

John McFarland And then finally, we’ll talk about the updating of travel policies. The next slide, please. So, these are fairly specific to COVID. So you may want to not necessarily update your policy on a permanent basis. However, if you can word it in such a way that it, it doesn’t just point to COVID but points to just general illnesses, you may want to make that permanent.

John McFarland So first and foremost is, is get employees that have to travel to understand the guidelines for vaccinated versus unvaccinated travelers. The CDC guidelines are very specific on both. That employees understand that there is a fed- eral mask and social distancing mandates. The social distancing isn’t really enforced, however, the mask mandates are. And, what’s important there is employees that travel, for instance, that let’s say they’re stationed in Florida, where there aren’t a lot of mask mandates, they need to understand that once they get on the airport property and within the plane, they will be required. It’s important that they understand that before they go into it cause they’re, they’re representing you and your, your organization. An interesting item that’s come up is airline-specific mask mandates. So far, it’s all been non-domestic airlines. Air France, Finnair, Lufthansa, and LATAM have all indicated that they will no longer allow cloth masks, they have to be surgical masks. So it’s important if an employee has to travel for business to France and they’re flying on Air France, even though they’re leaving, you know from JFK, they’re probably going to have to have a surgical mask, not their normal cloth mask, so it’s important to know before they get there.

John McFarland Personal hygiene. It’s important when you travel since you’re not always close to a restroom. Remind em- ployees to use hand sanitizer, perhaps provide them with, with small hand sanitizers for travel purposes. And then it’s, it might be advisable to establish travel protocols with respect to requirements to adhere to the state destination-specific COVID-19 restriction, cause there are. For instance, it was about a month ago, L.A. County indicated that masks are mandated while indoors, whether you’re vaccinated or not. So that’s something that an employee traveling to L.A. for business would need

to know before they get there. And then also there’s a requirement to revi, maybe, maybe consider a requirement to review current or state-local travel advisories off the CDC website. It’s a great link. You input the city and the state you’re traveling to, and it provides all the requirements for that particular state. So it’s an out, it’s an outstanding tool. And I think some of these can definitely be applied in a handbook permanently because you never know what you’re going into when you’re traveling to another area that may be dealing with something on a, on a more regional scale versus global scale, like we’re dealing with COVID at this time. And then with that, I will move on to the next slide, which is questions.

Jordan Alda Awesome, thanks, John.

John McFarland Yeah, my pleasure.

Jordan Alda We have a few questions in the, the chat box. I will read the first one to you.

John McFarland Sure.

Jordan Alda It says, “I have employees that just do not want to come back to the office. Any recommendations for how to tackle this?”

John McFarland That, that is actually a very tough, particular scenario that’s going on right now. I think, one of the best ways is just to have that heart-to-heart with the employee. And it’s definitely advisable to discuss what provisions you have in place to protect them from COVID. You know, just communicate well and be transparent with what you’re doing to protect them.

Jordan Alda Got it. Thank you. And the other question looks like it comes from your travel piece of the presentation. So, if someone does not want to travel on an airplane, let’s say, because of COVID, how can the company best address this concern if that travel is maybe on a more mandatory basis?

John McFarland You really have to point to the business necessity and the job description with respect to the fact that travel was a requirement. And in doing so, be sensitive to the fact that people are scared right now. There, there are those that wear it on their sleeve and you can tell and there’s those that aren’t. Mental illness is on the rise during COVID due to the isolation, due to, you know fear of the unknown, et cetera. And you’re dealing with, with some pretty heavy emotions. I’d approach it from an empathetic standpoint, but reiterate the business need and the business necessity, and tie it back to hopefully within your job description that indicated that, that travel is required.

Jordan Alda Perfect. Thank you. And one more here that we see so far. You mentioned that HIPAA compliance laws would be associated with tracking vaccination documentation. “It is my understanding that vac doc is not PHI, therefore not under, not under HIPAA compliance responsibility. Could you expand on this?”

John McFarland Yeah, so what I mean by that is you have to be careful with respect to how, how you’re asking for the doc- umentation. You know that, you’ve got this gray area right now, especially in an order from the state, for example, if you’re in healthcare, you need to determine this. You’re still dealing with a medical document. So if you’re collecting it, it needs to be handled as a medical document would be. And then the flipside to that is, if you’re not in healthcare, it’s not part of a mandate from the state or from the city, and you’re dealing with a situation where you are going to mandate it, how are you going to determine collecting medical documentation? Again, it, it, it’s a tough, it’s a tough area cause it’s a little gray. The EEOC has indicated that it’s okay, you can get into some of these questions. It’s okay to, to ask, you know if the symptoms. And it’s okay to do a temperature check. So we know we’re okay in those areas, but you’re still collecting medical information, so make sure you’re, you’re handling it in a way that you should, one.

John McFarland And two, you know use an example, we had a client that indicated, “I want to send a survey out to my entire team to find out what their status is on, on vaccinations.” I would definitely caution that type of collection of information. A better approach would be, ‘We’re gonna [blanket statement] and everybody needs the mask and social distance. However, if you would like to provide proof, we’ll gladly accept that. We’ll, we’ll have it on file and then you’ll be exempt from, you know the mask and the social distancing while indoors.” Although, at present, that goes against CDC guidelines with respect to masking indoors due to the Delta variant. But yes, you are correct because of the current situation, because of the public health, the CDC, you know, vaccination card, to me, it’s still a gray area, though. You still want to maintain that in a safe manner from a medical document collection perspective.

Jordan Alda Great, thank you, John. John McFarland Eh, hm.

Jordan Alda That appears to be all the questions in the chat box. If you have any remaining questions, feel free to type them in here as I close us out here today. Happy to pause the closeout for any additional questions that come through.

Jordan Alda But we like to thank everyone for their time today. If you have any additional questions that come up after this webinar and you are client, please reach out to your dedicated HR Business Partner. If you are not a client and have any additional questions, please feel free to reach out to me directly. My contact information is on the screen, so feel free to take a picture of it, write it down. I’m happy to address any after-the-fact questions, comments that come our way.

With that, I will close out this webinar. Thanks again for everyone’s time and John, thank you for walking us through some of the best practices to keep in mind as COVID evolves.

John McFarland Yeah, my pleasure.

Jordan Alda Thank you, everyone.

John McFarland Thank you.

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