HR Watchdog

Job Accommodation Network Releases Pandemic Flu Fact Sheet

The federal Office of Disability Employment Policy's Job Accommodation Network (JAN) has just released a new fact sheet, Considering the Needs of Employees with Disabilities During a Pandemic Flu Outbreak. Covering Critical Questions, Telework, and General Considerations, it also offers links to valuable resources you can use immediately. Later today, the fact sheet will be available in Spanish. This fact sheet is now available.

Be Prepared: Swine Flu

Swine flu in back in the news. CalChamber members should read the full article to comply with California labor laws and so your company is prepared to address possible exposure in your workplace.

Meet me at the Summit!

Not the summit of Kilimanjaro or otherwise, the 2009 Business Summit hosted by the Chamber! Those of you who follow this blog, or employment law developments in general, may be interested in attending the HR 101 breakout session at this year’s Business Summit in Sacramento on May 18, 2009 from 2:15-3:45 at the Convention Center.

I will be speaking, along with Senior Employment Law Counsel and Helpline Manager Susan Kemp. We are going to cover the top 10 issues facing employers on a daily basis. Topics such as “No Class” – all my employees are exempt is that okay? and “It’s not you, it’s me” – layoffs and downsizing in this tough economy will be covered.

It will be a great opportunity to discuss these issues in a setting with other employers experiencing similar issues. Plus, if I have not met you yet, I look forward to chatting with you!

More information about the Summit is available at www.calchamber.com

SF Healthcare Annual Reporting

The SF Healthcare Security Ordinance Annual Reporting Form (ARF) for 2008, is due by April 30, 2009. The City of SF will mail it to the address listed on the employer's business registration in March 2009.   Review the Annual Reporting Form Overview (PDF) and the Instructions for Annual Reporting Form (PDF) to ensure compliance with this reporting requirement.  For more information, or to download a blank form, use this link. 

Self-employed individuals, independent contractors, employers with 19 or fewer employees total (including any employees located outside of SF), and nonprofits with 49 or fewer employees total (including any employees located outside of SF) are not covered by the HCSO and should not return the Annual Reporting Form.

To be added to the HCSO email list to receive updates on the litigation, presentation schedules, and other information regarding implementation of this law, please send an email, with "mailing list" in the subject line, to HCSO@sfgov.org.

Heat Illness Training

Summer has snuck up on us once again. All of a sudden, it is in the 90's and outdoor workers have not had sufficient time to acclimatize. Hopefully employers of outdoor workers have done their required heat illness training, if not - now is the time.

More information on heat illness and training requirements is available on our Web site. Products to assist you in training all employees is available through the CalBizCentral store.

You can also visit CalOSHA's Web site for additional resources created by the agency as well as their 2009 training seminars schedule.

Applicability Date for E-Verify Federal Contractor Rule Extended

According to the U.S. Citizenship and Immigration Services, the applicability date of the final rule requiring federal contractors and subcontractors to begin using USCIS's E-Verify system has been pushed back by six weeks to June 30, 2009.

The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (collectively known as the Federal Acquisitions Regulatory Councils) will publish an amendment in the Federal Register tomorrow postponing the applicability of the final rule until June 30, 2009. The rule requiring federal contractors and subcontractors to agree to electronically verify the employment eligibility of their employees was first published on Nov. 14, 2008, and went into effect on Jan 19, 2009.

The extension provides the Administration an adequate opportunity to review the entire rule prior to its applicability to federal contractors and subcontractors.

For more information on E-Verify, visit www.uscis.gov/everify.

COBRA Stimulus Special Election Notice Deadline

Be sure you do not miss the April 18, 2009 deadline to send the Notice in Connection with Extended Election Periods.  Plans subject to the Federal COBRA provisions must send this form to any assistance eligible individual (or any individual who would be an assistance eligible individual if a COBRA continuation election were in effect) who:

1. Had a qualifying event at any time from September 1, 2008 through February 16, 2009; and
2. Either did not elect COBRA continuation coverage, or who elected it but subsequently discontinued COBRA.

This notice includes information on the American Recovery and Reinvestment Act ’s additional election opportunity, as well as premium reduction information. This notice must be provided by April 18, 2009.

Cutting Paid Holidays to Save Money?

The Labor Law Helpline, available for unlimited calling by Preferred and Executive members, is getting a number of calls with the following question:

Can we eliminate holiday pay to cut costs?

Answer: There is no California legal requirement to provide time off, paid or unpaid, for holidays. As such, if your company wants to terminate this benefit, you may do so. There are two issues:

1. Whether you wish to continue to close on holidays but no longer pay employees, and
2. Whether you wish to remain open on holidays and have it a regular business day.

Under option (1), keep in mind that doing so will only provide you with cost savings for your nonexempt employees because if nonexempt employees are not working for any portion of a day or an entire day, they need not be paid. This is to be distinguished from exempt employees who must be paid if they work at all in a work week and if they are ready and willing to work. If your company shuts down on its own accord and decides to make it an unpaid holiday, your exempt employees must be paid for the entire workweek.

Under option (2) you may not save money as your regular staff will likely be expected to work unless they take a personal day. Consult your own policy as to whether you require employees to use accrued time off before they take unpaid time.

In this instance, if a nonexempt employee wants to take time off for the holiday and they do not have accrued vacation or PTO, you do not have to pay them for any time they did not work. If an exempt employee takes time off for the holiday in an increment of four or more hours, you may deduct that amount of time from accrued vacation or PTO, but an exempt employee must be paid her full salary. If the exempt employee is absent for one full workday and has not yet accrued or used all accrued vacation or PTO, her salary may be reduced for that one full day.

COBRA Subsidy Model Notice Now Available in Spanish

The COBRA American Recovery and Reinvestment Act model general notice (full version) in Spanish has been added to the COBRA ARRA model notices page available on the Department of Labor's Web site.

This notice must be sent to all qualified beneficiaries, not just covered employees, who experienced a qualifying event at any time from September 1, 2008 through December 31, 2009, regardless of the type of qualifying event, and who either have not yet been provided an election notice or who were provided an election notice on or after February 17, 2009 that did not include the additional information required by ARRA.

This full version includes information on the premium reduction as well as information required in a COBRA election notice.

IRS Defines "Involuntary Termination" in recent COBRA subsidy guidance

The IRS released Notice 2009-27 providing additional information and clarification regarding the COBRA subsidy program or "premium assistance for COBRA continuation coverage."

Notably, "involuntary termination" is defined as a severance from employment due to the independent exercise of the unilateral authority of the employer to terminate the employment, other than due to the employee’s implicit or explicit request, where the employee was willing and able to continue performing services.

An involuntary termination may include the employer’s failure to renew a contract at the time the
contract expires, if the employee was willing and able to execute a new contract providing terms and conditions similar to those in the expiring contract and to continue providing the services.

An employee-initiated termination from employment constitutes an involuntary termination from employment for purposes of the premium reduction if the termination from employment constitutes a termination for good reason due to employer action that causes a material negative change in the employment relationship for the employee.

An involuntary reduction to zero hours, such as a lay-off, furlough, or other suspension of employment, resulting in a loss of health coverage is an involuntary termination for purposes of the premium reduction.

Involuntary termination occurs when the employer takes action to end the individual’s employment status (but mere absence from work due to illness or disability before the employer has taken action to end the individual’s employment status is not an involuntary termination).

Qualifying events other than an involuntary termination, such as divorce or a dependent child ceasing to be a dependent child under the generally applicable requirements of the plan (such as loss of dependent status due to aging out of eligibility), are not involuntary terminations qualifying an
individual for the premium reduction.

Involuntary termination does not include the death of an employee or absence from work due to illness or disability.

Regarding retirement, If the facts and circumstances indicate that, absent retirement, the employer would have terminated the employee’s services, and the employee had knowledge that the employee would be terminated, the retirement is an involuntary termination.