July 2020 has been another busy month for the federal and state agencies that regulate employment in addressing COVID-19. The following briefly summarizes some of the most recently-published agency guidance and other resources available to assist employers in navigating the ongoing pandemic in their workplace. These materials include new guidance from the DOL on unemployment benefits, OSHA guidance targeted at the oil and gas industry, and IRS guidance for employers covered by the FFCRA.
DOL (ETSA) – Workers Who Refuse To Work In An Unsafe Work Environment May Still Be Entitled To Enhanced Unemployment Compensation Benefits
On Tuesday, July 21, 2020, the Department of Labor issued the third in a series of letters to state unemployment administrators answering a number of novel questions posed to it since the CARES Act, which added an additional $600 to weekly benefits and expanded the type of workers eligible to collect unemployment, was passed. One of the specific questions asked and answered is whether an individual who refuses an offer of work due to legitimate COVID-19 health and safety concerns is eligible for enhanced benefits under the CARES Act. The answer according, to the DOL, depends first on what the state considers a “suitable” working environment. “Many states . . . have suitable work provisions that consider work that unreasonably exposes an individual to safety risks to be unsuitable.” If an individual is offered and refuses work that unreasonably exposes them to COVID-19, the state may conclude that the work is not suitable, meaning the individual would be entitled to unemployment benefits. But even if an individual refuses “suitable work,” they may still be eligible for benefits if the refusal is based on one of the COVID-19-related reasons contained in the CARES Act. Additionally, according to the DOL, the individual may still be eligible for enhanced benefits if they were to refuse work that would be considered suitable under state law, but turned the work down for “good cause” under state law. The DOL stops short, however, of defining “good cause.” A link to the letter is here.
OSHA – COVID-19 Related Guidance For Oil And Gas Workers And Employers
On July 7, 2020, OSHA issued COVID-19 control and prevention guidance for oil and gas industry workers and employers. This guidance supplements the general interim guidance for workers at increased risk of occupational exposure to COVID-19. Overall, the guidance opines that oil and gas workers are a low to medium risk exposure group. The guidance, however, specifically recommends that employers conduct hazard assessments to assess those conditions under which oil and gas workers may be in close contact with others and whether and what kind of PPE might be required to limit close contact. In addition to sanitization of offices and equipment, proper hygiene, and regular handwashing, the guidance recommends the use of cloth masks and face coverings in common areas. Carpooling is also addressed. According to the guidance, employers should “[e]ncourage workers to avoid carpooling to and from work and job sites, when possible.” If carpooling is required, the guidance lists a number of precautions to consider, including wearing cloth masks and opening the vehicle’s windows. Interestingly, the guidance does not specifically address temperature checks, health screenings, or testing programs, however, these are all precautions that we recommend employers should continue to consider as workers return to work.
Note: At least one state, Virginia, recently enacted its own OSHA standard for COVID-19 that includes extensive regulations on a variety of safety issues from notification of positive cases, to required PPE, to conducting hazard assessments, to creating response and preparedness plans. The Virginia standard in some cases exceeds what is currently required by federal OSHA and the CDC. We expect other states to follow suit in the coming months.
OSHA And COVID-19 Related Complaints – Where Are They Coming From?
OSHA is also tracking all valid COVID-19 related complaints and referrals received since February 1, 2020 and publishes a daily report online. As of July 21, 2020, 7,943 complaints and referrals tagged as related to COVID-19 had been received by OSHA and 18,852 complaints and referrals had been received at the state level from all industries. The online data also indicates the number of COVID-19 related inspections opened and breaks down the data by industry.
Department of Homeland Security – Extension Of I-9 Physical Inspection Waivers And Other Odds And Ends
On July 19, 2020, the Department of Homeland Security (DHS) extended the waiver of the physical presence requirements for I-9 inspection for another 30 days until August 19, 2020, due to ongoing concerns regarding the spread and transmission of COVID-19. A link to the announcement is found here.
Employers who are not physically working in their offices may continue to inspect Section 2 documents remotely (e.g., video link, fax, or email). Employers who use this option must provide written documentation of their remote onboarding and telework policy to employees. Once normal operations resume, all employees who were on-boarded using remote verification, must report to their employer within three business days for in-person verification of identity and employment eligibility documentation.
For employers that continue to have a physical presence in the office, this exception does not apply. However, they may continue to designate an authorized representative to act on their behalf vis-à-vis the I-9 inspection process. A link to the original guidance is found here.
ICE also recently announced that after July 19, 2020, no additional extensions will be granted to employers who were served notices of inspection (NOIs) by ICE during the month of March 2020.
FFCRA And New IRS Guidance
On July 8, 2020, the IRS issued guidance for employers on how to report qualifying wages paid to employees under the emergency sick leave and emergency family leave provisions of the Families First Coronavirus Response Act (“FFCRA”). As a reminder, the FFCRA covers private employers with fewer than 500 employees and requires those employers to provide paid leave for six qualifying reasons between April 1, 2020, and December 31, 2020. The new guidance details how wages paid under the FFCRA must be detailed on the Form W-2 at the end of the year.
The Bottom Line For Employers: The federal and state agencies that regulate the workplace continue to be active in responding to the COVID-19 pandemic. It is a lot of information to keep up with for sure, but it is also part of the new workplace. If you have compliance questions, please do not hesitate to contact the attorneys at M2D.