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EEOC suit filed over pandemic Telework request denial

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.

Stacy Jensen No Comments

Vaccine mandate may be headed your way…

President Biden to institute a mandate that all employers with 100 workers or more must require COVID-19 vaccinations or a weekly negative test result before coming to work. The new rule will be enforced by OSHA, which will issue an emergency temporary standard to implement this requirement. The ETS will impact more than 80 million workers in private sector businesses in the U.S. 

Businesses that do not comply with the agency’s rule can face fees up to $14,000. OSHA will require these employers to offer paid time off for vaccination.

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Mask Mandate returns to Boulder

The Boulder County Board of Health approved Public Health Order 2021-08 on 9/2/2021 which requires facial coverings for anyone 2+ in public indoor spaces during periods of substantial or high-transmission of COVID-10, regardless of vaccination status. The order takes effect September 3rd at 5pm. 

A link to the order can be found here. Mask signage will also be required at every business.

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PHE declared “over” by Governor Polis

On Friday, July 9th, Governor Polis ended the Health Emergency Executive Orders for COVID-19 and rescinded all previous Executive Orders issued due to the COVID-19 pandemic. He also signed a Recovery Executive Order to focus only on those measures related to the State’s recovery from the COVID-19 pandemic emergency. The HFWA still requires COVID related leave time due to the existence of the PHE at the federal level. Some employers may choose to optionally continue with the voluntary extension of the FFCRA, which is slated to expire 9/30/2021. Confused? Understandable. Reach out to InTANDEM HR and we will help you navigate the leave laws. Until then, we are hoping you all feel and are well!

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Employee retention in the year of “I quit”

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.

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Juneteenth is our newest Federal Holiday!

It has been since 1983, when Martin Luther King Jr. Day was signed into law by then-President Reagan, that we have added a new legal public holiday. Juneteenth National Independence Day will become the 12th legal public holiday.

Juneteenth marks the date that the last enslaved African Americans were granted their freedom. On that day in 1865, Union soldiers led by Gen. Gordon Granger arrived in the coastal city of Galveston, Texas, to deliver General Order No. 3, officially ending slavery in the state.

The Senate approved the bill unanimously this week, and President Biden will sign the bill today (June 17, 2021).

Juneteenth is celebrated the 19th of June each year and was already a paid holiday for state employees in Texas, New York, Virginia and Washington.

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ACA is here to stay, at least for now.

The Supreme Court dismissed a challenge to the Affordable Care Act on Thursday in a decision that leaves the law intact and retains health care coverage for millions of Americans. The justices turned away a challenge from Republican-led states and the former Trump administration, which urged the justices to block the entire law.

The justices said that the challengers of the 2010 law did not have the legal right to bring the case. The Texas v. U.S. decision was just released.  The Court held that the plaintiffs lacked standing. 

Justice Stephen Breyer penned the decision, stating “We do not reach these questions of the Act’s validity, however, for Texas and the other plaintiffs in this suit lack the standing necessary to raise them.”

“For these reasons, we conclude that the plaintiffs in this suit failed to show a concrete, particularized injury fairly traceable to the defendants’ conduct in enforcing the specific statutory provision they attack as unconstitutional. They have failed to show that they have standing to attack as unconstitutional the Act’s minimum essential coverage provision. Therefore, we reverse the Fifth Circuit’s judgment in respect to standing, vacate the judgment, and remand the case with instructions to dismiss.”

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Preparing for mandatory PSL, small employers

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.

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It’s pride month! Celebrate LGBTQ employees by reviewing your HR practices!

LGBT Pride Month is June, to commemorate the Stonewall riots, which occurred at the end of June 1969. As a result, many pride events are held during this month to recognize the impact LGBT people have had in the world.

Since 2008, LGBTQ non-discrimination in Colorado has protected people statewide from discrimination in housing, employment and public accommodations on the basis of sexual orientation and gender identity (employment non-discrimination for LGBT people was passed in 2007). 

Federally, just one year ago (June 15, 2020) In a 6-3 decision authored by Justice Neil Gorsuch—the Supreme Court held that Title VII’s ban on discrimination extends to gay, lesbian, and transgender individuals.

By partnering with InTANDEM HR, you have resources for initial and continual reviews of your HR policies and benefits administration to ensure bias free treatment of your employees. A few other thoughts on revisiting your employment practices…

Review additional policies and practices that may discriminate against sexual orientation and gender identify or expression, such as:

  • Hiring practices—background checks and reference checks may require applicant’s prior names that will expose them to potential employers as transgender. Ensure this information is kept confidential and not used against applicants. Results should always be stored in a file separate from the personnel file.
  • Talk about talking—eliminate wording that assumes traditional gender roles and heterosexual relationships and families as the norm.

Participate in employee training

There are many resources for Diversity and Inclusivity training. InTANDEM HR has a great in person or virtual training for you and your team. During this training, employees can learn more about their colleagues and how they can support diversity and inclusivity to reduce bias and create a safe place for LGBTQ individuals to be their authentic selves and do their best work.

Also, track both successes and areas for improvement through methods such as employee surveys, exit interviews, employee grievances and discrimination claims.

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American Rescue Plan Act

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.