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DOL issues FFCRA Revisions

The DOL has instituted revisions to the Families First Coronavirus Response Act (FFCRA). These revisions take effect September 16, 2020.

The revisions clarify workers’ rights and employers’ responsibilities under the FFCRA’s paid leave provisions.

Specifically, he revisions:

Reaffirm and provide additional explanation for the requirement that employees may take FFCRA leave only if work would otherwise be available to them.

Reaffirm and provide additional explanation for the requirement that an employee have employer approval to take FFCRA leave intermittently.

Revise the definition of “healthcare provider” to include only employees who meet the definition of that term under the Family and Medical Leave Act regulations or who are employed to provide diagnostic services, preventative services, treatment services or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care.

Clarify that employees must provide required documentation supporting their need for FFCRA leave to their employers as soon as practicable.

Correct an inconsistency regarding when employees may be required to provide notice of a need to take expanded family and medical leave to their employers.

The changes can be found in detail at:

https://www.federalregister.gov/documents/2020/09/16/2020-20351/paid-leave-under-the-families-first-coronavirus-response-act

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Mask Mandate continued 30 more days

On September 12, Colorado Governor Jared Polis extended the statewide mask order through at least October 12, 2020. The mask order is being enforced. All employers must comply, and are being fined for each individual within a worksite who is not wearing a mask regardless of distancing indoors.

Excluded are:

People who are 10 years old and younger.
People who cannot medically tolerate a face covering.

We will update you if there are changes. Until then, please mask up!

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Colorado Mask mandate remains in effect until at least September 14, 2020

Reminder, according to covid19.colorado.gov/:

Is it ever OK to remove my mask at work?
What if I’m alone in my office with the door closed?
If you are the only person in a room with the door closed, then you may remove your mask. If someone else enters the room, please put your mask back on. You must wear a mask in common areas like hallways, elevators, or breakrooms.

Sitting at my cubicle spaced 6 feet away from my closest neighbor?
You must wear a mask in any shared, indoor space that accommodates people outside your household. This includes spaces divided by physically distanced cubicles. We require masks in such settings because Colorado has recently experienced outbreaks in indoor, office-based settings. We continue to encourage employers to prioritize work from home.

In the elevator? Break room? Hallway?
You must wear a mask in common areas like hallways, elevators, or breakrooms. If a common space is used for consuming meals (i.e., break rooms), follow restaurant guidance for that setting.

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Payroll Tax Delay Memorandum

On Saturday, the President issued an executive memorandum regarding a payroll tax delay. The
memorandum directs the Secretary of the Treasury to implement a delay of certain employees’
obligations to pay Social Security taxes. The payroll tax provision requires guidance to be issued by the
Department of Treasury. Until that guidance is issued, many of the details are unknown.
Below is a summary of the key provisions of the memorandum:
• The memorandum applies to the period September 1, 2020, through December 31, 2020.
• It is unclear whether employers are required to take advantage of the delay.
• The memorandum does not address what an employer should do if he decides to continue
withholding payroll taxes.
• The memorandum only applies to the 6.2 percent Social Security tax on employees.
• The memorandum only applies to employees generally earning less than $104,000
annually.
• The memorandum only provides a delay of the tax obligation, not forgiveness.
• No penalties or interest shall apply to those who use the delay.
• There is no relief with respect to employers’ withholding obligation.

It is important to keep in mind that Congress and the Trump Administration are still negotiating on a
potential COVID-19 relief measure, and that a compromise bill could supersede the President’s actions.
As this situation becomes clearer, we will update you on what to expect and what actions to take.

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Governor Polis issues statewide Mask Mandate

On July 16th, CO Governor Polis issued an indoor space mandated mask wearing order.

For the purposes of this Executive Order, Public Indoor Space means any enclosed indoor area that is publicly or privately owned, managed, or operated to which individuals have access by right or by invitation, expressed or implied, and that is accessible to the public, serves as a place of employment, or is an entity providing services. Public

Indoor Space does not mean a person’s residence,
including a room in a motel or hotel or a residential room for students at an educational facility.

Executive Order D 2020 138 can be accessed here:

https://drive.google.com/file/d/10Bf0QpW_l0ZPanPNIpysLGcJwIUc1cht/view

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Supreme Court decision protects LGBTQ workers

On Monday, June 15th, 2020, the Supreme Court has solidified protection for LGBTQ employees, banning any employer in the United States from terminating or discriminating against an employee based on their sexual orientation or gender identity. The ruling includes these protections under Title VII of the federal Civil Rights Act. Though Colorado has protected our LGBTQ workers since 2008, up until Monday, it was legal in 29 other states to discriminate against workers due to their LGBTQ status.

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Mandatory Sick Pay requirement in Colorado

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 requirement goes into effect for employers with 16 or more employees on January 1, 2021, and for all other covered employers (regardless of how many employees they employ) on January 1, 2022.

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.

Numerous questions await clarification from the CDLE, such as:

1. Does my PTO policy comply with this new leave law?

2. If my company offers PTO and pays out accrued and unused balances upon separation, and an employee is rehired, how would I know what balance I must give them if they are rehired?

Now is the time to contemplate policy changes that will comply with the new law. As we hear more from the CDLE, we will reach out to each of our clients to ensure they are in compliance with the Healthy Family and Workplaces Act. 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.

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OSHA issues modified RTW Guide

OSHA has recently revised their return to work guidance for employers who are open during our current COVID pandemic. The new 27 page publication can be accessed here:

https://www.osha.gov/Publications/OSHA4045.pdf

The previously issued 35 page guidance contains much similar content, but a few newly updated version puts a focus on:

  • Conducting a thorough hazard assessment that examines the potential COVID-19 exposures for each job category and outlines protective measures.
  • Clarifying that employers may perform daily temperature checks and health assessments of employees, so long as the checks are administered transparently and fairly and anyone performing the checks is protected from possible infection. However, asking employees to self-check at home may be more efficient, especially when paired with sick-leave policies that encourage workers to stay home if they feel ill. Temperature screening “may have limited utility on its own,” OSHA wrote. NOTE Colorado’s mandated RTW policies as well local jurisdiction’s requirements.
  • Cloth face masks are recommended to prevent the spread of COVID-19, and cloth masks may count as administrative controls for keeping the workplace safe. However, OSHA reiterated that cloth face masks are not personal protective equipment (PPE) and so are not subject to requirements for training and fit testing. Cloth face masks cannot be used in place of more protective N95 masks, which are required as PPE in certain health care, construction and other settings.

OSHA’s guidance must be used in tandem with the state of Colorado’s requirements:

https://www.colorado.gov/governor/sites/default/files/inline-files/D%202020%20044%20Safer%20at%20Home.pdf

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Our commitment to a more just Community

Friends,

This is a reprint from our partners at Anthem. We love their message here, and we are thinking of all of you and doing our best to learn and be better.

Our commitment to a more just community

Our communities are hurting after the tragic death of George Floyd, and countless others who came before him. We are all shaken by grief and frustration. Personally, these recent events have given me pause to reflect across the many aspects of my life — as a leader, as a citizen, and as a parent. There is a regrettable history of suffering and injustice in our Black community, and that suffering should be important to all of us.

The effects of COVID-19, together with the social unrest, have further illuminated the racial and health disparities that have plagued our communities. These local communities, where we live and work, are also where we serve you, our customers and members, through the lens of inclusion, acceptance and belonging. It’s always been a part of our foundation, a part of our founding tenets of Blue Cross and Blue Shield plans, and who we are as people. But these recent weeks have spotlighted issues that we’ve not spent enough time talking about — not only as a company, but certainly as a society and as a country. We at Anthem are pledging to do more. You can count on us, and on me.

Today, Anthem and the Anthem Foundation announced commitments to drive national change with a $50 million pledge over the next five years focused on directly impacting racial injustice issues, strengthening our communities and addressing health inequities. With our 75-year history in local communities, Anthem is compelled by our values to improve the lives and the health of communities and help build a better, more equitable and healthier America.

Today’s investment will reinforce and strengthen long-standing partnerships with national and community organizations that are working tirelessly to combat systemic racial inequality and health inequities. As we build upon this legacy, Anthem and our Foundation will work side-by-side with new and existing partners to find ways to unify and bridge conversations around these issues and open an important dialogue for all Americans. Our engagement includes matching donations made by Anthem associates to non-profit organizations dedicated to addressing social and health disparities across the country, and working alongside small businesses in our communities to support their recovery and resilience through restoration and clean-up efforts.

We each have the ability — and obligation — to advance the change that is overdue and create a better future for everyone.

This is a time for healing, for reconciliation, and for action. This work won’t stop. We can and will do more to ensure that all of our members and customers, across all of our communities, are part of a more hopeful nation — together.

With compassion,

Gail


Gail Boudreaux, President and CEO

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Paycheck Protection Program Flexibility Act Signed into Law

Today the Paycheck Protection Program Flexibility Act (PPPFA) was signed into law. The Act is intended to ease the rules of the PPP. A summary of the changes follows:

• Instead of eight weeks, borrowers will now have 24 weeks from the disbursement of their loan to use the PPP funds, or until Dec. 31 when the program is now set to end. Borrowers can still opt, however, to use funds in the original eight-week period.
• Employers now have to spend 60 percent—rather than the previous 75 percent—of PPP funds on payroll costs. Payroll costs include:
 Salary, wages, commissions and tips—up to $100,000 annualized for each employee.
 Employee benefits, including paid leave, severance pay, insurance premiums and retirement benefit.
 State and local taxes assessed on pay.
The additional 40 percent could be spent on mortgage interest, rent, utilities and other costs.
• Employers now have until Dec. 31, rather than June 30, to rehire certain laid-off workers if they are seeking loan forgiveness. If a suitable offer of employment is turned down by the employee, employers must meet five conditions to avoid having their loan forgiveness reduced. Businesses must:
1. Clearly present an offer letter in writing to the laid-off worker.
2. Offer the same salary, wages and number of hours the employee had prior to the layoff.
3. Receive a rejection of the offer.
4. Document the offer and the rejection. “The refusal does not need to be in writing but should be documented and kept in the employer’s PPP loan forgiveness file,” he said.
5. Notify the state unemployment office within 30 days of the date the offer is refused (InTANDEM can do this for you, we just need to have steps 1-4 from you and then we will send the state a letter).
• The new act extends the maturity date of the PPP loans—for any portion of a PPP loan that is not forgiven—from two years to five years. With respect to already existing PPP loans, the act states specifically that nothing in the act will “prohibit lenders and borrowers from mutually agreeing to modify the maturity terms of a covered loan.”

We’re excited about the changes to the PPP that will give us more time and options for the loans as well as extended forgiveness. We welcome any questions you have regarding the PPPFA.