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The EEOC alleged in its first disability accommodation lawsuit connected to the pandemic that a health and safety manager in Georgia was fired after her employer denied her request to continue working from home because her heart condition heightened her Covid-19 risk.

The complaint states that the facility management company with headquarters in San Antonio, denied Ronisha Moncrief’s accommodation request under the Americans with Disabilities Act. The Covid-19 pandemic led to teleworking arrangements for many employees. Even prior to the pandemic the EEOC and disability advocates have looked to telework as a reasonable disability accommodation.

In this particular case, of employees were required to work remotely from March 2020 to June 2020. When the facility reopened, she asked to work remotely two days per week and take frequent breaks while working on-site because of her pulmonary condition, which causes her to have difficulty breathing, according to the EEOC’s complaint. The agency states that though other employees were allowed to continue to work from home, her request was denied and she was fired, the agency.

As this and more similar actions play out in court it will provide employers with more of a tangible framework for looking at ADA telework requests. The ADA requires that employers make reasonable accommodations for employees to perform their essential job functions.

Any of our clients or employees who have questions regarding reasonable accommodations should contact us for assistance in navigating the law and each specific request.

Turnover is all around us. Restaurants are back to full capacity, but the staffing shorting in the service industry is not matching up with the mouths. Recreation centers and pools have opened back up, but the struggle to employ workers has left some to keep their hours reduced and capacities limited. What is causing, or caused, the “great resignation”? Many things. Some employees who worked from home for months were disinterested in a return to work full-time when the pandemic subsided. Some got that “life is too short” feeling during the nasty year which was 2020 and decided to take their dreams a different route. Some have started or are planning to start their own new business or work gig work, and others are doing a straight “more money” resignation. Still others have quit to go back to school, or stay home with their child(ren). The reality is that millenials and the new to the workforce Gen Z workers turnover more frequently than their Gen X and Baby Boomer co-workers.

So what’s an employer to do? Turnover happens, but when you find yourself the revolving door equivalent as an employer, it’s time to take a close look at the cause. Are you turning over employees more frequently than other similar employers in your industry? Is their a common theme to the talented candidates that are accepting other jobs or leaving employment for other options? Are you conducting stay interviews, exit interviews, and running salary surveys? What makes you stand out as an employer of choice amongst your competition? Ensuring competitive pay and time off benefits, insurance benefit offerings, and other enticements such as flexible workplace options and hours is a start.

It is a fascinating job market right now. It will change, we will learn, and we must grow along with the market to stay in touch with the top talent. The oft mentioned “company culture” deserves a solid analysis, and only our employees can give us that.

On July 14, 2020, Colorado Governor Jared Polis signed into law the Healthy Family and Workplaces Act (Senate Bill 205), requiring employers in Colorado to begin accruing at least one hour of paid sick leave for every 30 hours worked, up to 48 hours total. This new law went into effect for employers with 16 or more employees on January 1, 2021, and will be effective January 1, 2022, for all other covered employers (regardless of how many employees they employ).

The law permits use of paid sick leave hours immediately, for personal employee illness or medical appointments including well visits, to care for family members, for leave associated with certain domestic abuse or sexual assault issues, and includes mental health.

The law applies to hourly, salaried, exempt, non-exempt, and even seasonal employees, mandates only limited notice and documentation requirements for sick leave requests, prohibits retaliation against employees requesting sick leave (including any reduction in pay or discipline for requesting or taking sick leave), and requires posted notices, imposes specific record-keeping requirements.

The law does not require accrued, unused sick leave hours be paid out upon separation.

A rehire provision mandates that employees who separate and are rehired must be given the bank of hours they had upon separation.

Now is the time to contemplate policy changes that will comply with the new law. InTANDEM HR will reach out to each of our smaller clients to ensure they are in compliance with the Healthy Family and Workplaces Act (the 16+ employers were updated last year). Our software system is fully able to handle this paid sick leave mandate and has been doing so for many clients with employees who work in states with a similar paid sick leave requirement.

Congress recently passed the American Rescue Plan, which provides additional relief to individuals and businesses impacted by the COVID-19 epidemic. Though we need further guidance, not yet released, from the DOL, we will briefly summarize some of the pieces relevant to our clients:

• An extension of the Employee Retention Tax Credit through the 3rd and 4th quarters of 2021. Any credits in 2020 must be completed by 6/1.
• An extension of the tax credits for voluntarily providing FFCRA paid sick and family leave another two quarters – through Sept. 30, 2021. Keep in mind that Colorado has the PHE (public health emergency) paid leave obligation. The DOL has not clarified if employers voluntarily abiding by the FFCRA can cap their offerings at 80 hours or if they must extend it to the 14 weeks noted in the Act.
• An increase in the exclusion for employer-provided dependent care assistance for 2021 from $5,000 to $10,500. We are reaching out to employees directly so that they may voluntarily increase their elections if they desire.
• A temporary subsidy of 100 percent for COBRA qualified beneficiaries where the employee’s qualifying event was an involuntary termination of employment or reduction in hours due to the pandemic, with the subsidy paid by the employer, plan, or insurer and reimbursed by the government through a refundable payroll tax credit. This will take effect 4/1/2021 – 9/30/2021. Our TPA, 24hourflex, will administer this.
• A temporary elimination of the upper income limit for eligibility for premium tax credits in the ACA exchanges – which is currently set at 400 percent of the federal poverty level for 2021 and 2022 – and an increase in the amount of the premium tax credits by decreasing the amount that an individual must contribute to the cost of coverage.
• An expansion of the eligibility guidelines for the Paycheck Protection Program to allow more nonprofit entities to be eligible.
• A direct subsidy of $28.6 billion set aside for restaurants to be administered by the Small Business Administration, with $5 billion of this amount set aside for restaurants with gross revenue of less than $500,000.
The American Rescue Plan extends several unemployment provisions in the CARES, Family First, and CAA bills, including:
• The waiver of interest on outstanding loans to states to pay unemployment compensation.
• 100 percent federal reimbursement of regular extended unemployment benefits.
• Additional funding for systems and to address fraud.
• An increase in federal reimbursement credits to reimbursing employer accounts.

Finally, the bill extends temporary federal unemployment benefits by $300 a week through August 29, 2021.

With the very new passing of this bill, we are seeking clarification from experts who can help us navigate these benefits and provide you with accurate information. As we have more details we will pass along that knowledge.

Actual current employees who have NOT filed unemployment claims with the state of Colorado have been hit with fraudulent UI (unemployment insurance) claims with an unprecedented level in recent months.

The state of Colorado has adviced the following steps:

If you receive a Reliacard debit card or other paperwork from CDLE and have not filed a claim, report it to us via the form below and follow the five steps. Use this same form if you have received any paperwork to your mailing address that was sent to someone else other than those in your household.

Protect Yourself Against Fraud and Identity theft 
Never give out personally identifiable information over the phone. We will never contact you and ask for your social security number (SSN), bank account numbers, your PIN, account passwords, or any other personally identifiable information.Submit A Fraud Report

You Received Unemployment Paperwork
or a Debit Card Without a Claim

If you received unemployment paperwork but did not file a claim, or otherwise believe you are a victim of identity theft related to unemployment benefits, please click here to submit a fraud report. Additionally, there are several recommended steps to follow:

• If you received a U.S. Bank Reliacard for Colorado unemployment benefits but did not file a claim, fill out the U.S Bank Form or contact U.S. Bank immediately at 1-855-282-6161. Tell them that a fraudulent unemployment claim was filed using your information, and ask them to deactivate the card.
   
• Contact the three consumer credit bureaus and put a fraud and identity theft alert on your name and Social Security number (SSN). It may be an automated system, so you may not talk to a live person and you will have to enter your SSN and date of birth.
  
  Credit Bureau Contact Info:
  Equifax: 1-800-525-6285
  Experian: 1-888-397-3742
  TransUnion: 1-800-680-7289

Please also email your InTANDEM HR Account Manager to alert them to the fraudulent claim. We report any phony UI claims we receive to the state.

The EEOC has recently issued updated guidance addressing COVID-19 vaccinations in the workplace. Many employers are asking, can we require our employees get a COVID-19 vaccine?

The EEO has responded – employers can adopt mandatory vaccination policies that require employees to get vaccinated as a condition of entering the workplace. However, the EEO mandates that employers also must attempt to accommodate employees who, due to disabilities or sincerely-held religious beliefs, decline or refuse to receive the vaccine.

If an employee refuses due to disability concerns, employer must first conduct an “individualized assessment” to determine whether having that employee unvaccinated in the workplace would pose a “direct threat” to health and safety within the meaning of the ADA. If the employer decides that the unvaccinated employee would pose a “direct threat,” the employer must next determine whether it can provide a reasonable accommodation to reduce this risk so that the employee no longer poses a “direct threat.” For example, the employer may want to consider whether enforcing infection control policies, such as mask-wearing and social distancing, would acceptably reduce any threat.

If the employer determines that there is no way to provide a reasonable accommodation that would prevent the employee from posing a “direct threat,” they can exclude the employee from entering the workplace. This is not an allowance to automatically terminate employment, however, and counsel should be sought.

If an employee objects to a vaccine on the basis of religious grounds, the employer must provide a reasonable accommodation for the religious belief, unless it would pose an “undue hardship” to the employer.

Vaccines are nothing new, though the COVID-19 vaccine most certainly is. As such, seek legal counsel to develop a vaccination policy should you so choose, and reach out to us prior to making an employment decision based on vaccination refusal.

View the EEOC’s guidance here:

https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws

The state of Colorado has updated their labor law posting with relation to compensation. The new COMPS order #37 should be displayed on top of the prior COMPS order #36 wherever your other labor law postings live:

https://cdle.colorado.gov/sites/cdle/files/COMPS%20Order%20%2337%20%282021%29%20Poster%20CLEAN.pdf

The state of Colorado also requires a posting for 1/1/2021 of the mandatory “Colorado Workplace Public Health Rights Poster: Effective January 1, 2021 PAID LEAVE, WHISTLEBLOWING, & PROTECTIVE EQUIPMENT”. This should also be included with your other labor law postings:

https://cdle.colorado.gov/sites/cdle/files/Poster%2C%20Paid%20Leave%20%26%20Whistleblower%20-%202021%20poster.pdf

NOTE – we will post these to the ESS in the form of a document that satisfies the distribution/posting requirement to your employees. We will also include it on the electronic onboarding portal so that all of your new hires going forward acknowledge receipt of the documents. You may additionally email blast this to your employees if you so choose.

If you have any questions regarding these postings please let us know. Thank you for partnering with us to ensure your HR compliance.