State of Michigan guidance on Temporary Leave vs. Termination:  Due to the uncertainty regarding potential congressional action regarding whether and how furloughed workers will be able to access federal paid sick, family, and medical leave resources, employers are strongly urged to place employees on  temporary leave and advise the worker that they expect to have work available within 120 days as opposed to termination. There is no additional cost to employers, employees remain eligible for UI benefits through the state, and employees may remain eligible for potential federal assistance.  Steps for employers placing employees on temporary unpaid leave:

• Do not terminate the employee – specify a temporary/indefinite leave with return to work expected that is within 120 days.

• Do not create a contractual obligation to bring the employee back to work – Let the employee know that the situation is fluid and subject to change.

• Provide the employee with a formal Unemployment Compensation Notice. Employers will need to provide their Employer Account Number and Federal Identification Number. 

• Communicate to the employee about their rights. Under Governor Whitmer’s recent Executive Order, workers who are placed on leave, or are unable to work because they are sick, quarantined, immunocompromised, or have an unanticipated family care responsibility, are eligible for unemployment insurance benefits.

• Provide information on how to obtain unemployment insurance benefits. A factsheet can be found here.

• Get each employees’ up-to-date contact information.

• Let employees know if you will be putting updated information on the entity’s website or intranet, if applicable.

• Appoint a single, or limited number of individuals who will field questions, and communicate that information to employees.

• Keep a tally of all questions and answers.  Periodically share with employees.

Under the governor’s order, an employer or employing unit must not be charged for unemployment benefits if their employees become unemployed because of an executive order requiring them to close or limit operations.  Source:  State of Michigan 3/18/20

U.S. Department of Labor releases FAQs on Paid Family Leave:  The Department of Labor’s Wage and Hour Division has published guidance on dealing with Coronavirus in the workplace. The guidance is contained in 11 frequently-asked-questions and answers about COVID-19 and the FMLA.  See https://www.dol.gov/agencies/whd/fmla/pandemic.

DOL to observe a temporary period of non-enforcement for the first 30 days of Families First Coronavirus Response Act:  The U.S.  Department of Labor will observe a temporary period of non-enforcement for the first 30 days after the Act takes effect, so long as the employer has acted reasonably and in good faith to comply with the Act.  For purposes of this non-enforcement position, “good faith” exists when violations are remedied and the employee is made whole as soon as practicable by the employer, the violations were not willful, and the Department receives a written commitment from the employer to comply with the Act in the future. Source:  US DOL

DHS is relaxing I-9 Section 2 document physical inspection requirements:  ASE was receiving a lot of questions concerning remote work and onboarding of employees.  We followed up with the Department of Homeland Security and it has modified its policy during this pandemic time.  Specifically, DHS states:

“Due to precautions being implemented by employers and employees related to physical proximity associated with COVID-19, the Department of Homeland Security (DHS) announced today that it will exercise discretion to defer the physical presence requirements associated with Employment Eligibility Verification (Form I-9) under Section 274A of the Immigration and Nationality Act (INA).

Employers with employees taking physical proximity precautions due to COVID-19 will not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence. However, employers must inspect the Section 2 documents remotely (e.g., over video link, fax or email, etc.) and obtain, inspect, and retain copies of the documents, within three business days for purposes of completing Section 2.  Employers also should enter “COVID-19” as the reason for the physical inspection delay in the Section 2.

Additional Information field once physical inspection takes place after normal operations resume. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 additional information field on the Form I-9, or to section 3 as appropriate. These provisions may be implemented by employers for a period of 60 days from the date of this notice OR within 3 business days after the termination of the National Emergency, whichever comes first.

Employers who avail themselves of this option must provide written documentation of their remote onboarding and telework policy for each employee. This burden rests solely with the employers.

This provision only applies to employers and workplaces that are operating remotely. If there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification.”

To see the full press release, click here.

E-Verify extends timeframe for taking action to resolve Tentative Nonconfirmations: E-Verify is extending the timeframe to take action to resolve Social Security Administration (SSA) Tentative Nonconfirmations (TNCs) due to SSA office closures to the public.  E-Verify is also extending the timeframe to take action to resolve Department of Homeland Security (DHS) TNCs in limited circumstances when an employee cannot resolve a TNC due to public or private office closures.  Employers are still required to create cases for their new hires within three business days from the date of hire.  Employers must use the hire date from the employee’s Form I-9 when creating the E-Verify case. If case creation is delayed due to COVID-19 precautions, select “Other” from the drop-down list and enter “COVID-19” as the specific reason.

Employers may not take any adverse action against an employee because the E-Verify case is in an interim case status, including while the employee’s case is in an extended interim case status.  Employers must notify the employee about their TNC result as soon as possible.  After your employee is notified of their TNC and decides whether to take action to resolve the TNC, the employee should acknowledge the decision on the Further Action Notice, and the employer should notify E-Verify of their employee’s decision. Employees who choose to take action to resolve a TNC are referred to SSA and/or DHS. Employers may not take any adverse action against an employee because the E-Verify case is in an interim case status, including while the employee’s case is in an extended interim case status.  Source: USCIS 3/21/20

EEO-1 reporting could open by July 1:  On March 20, the EEOC announced that it had submitted to the Office of Management and Budget (OMB) a request for a three-year Paperwork Reduction Act approval of Component 1 of the Employer Information Report (EEO-1). Specifically, the EEOC is seeking OMB approval to remove Component 1 from OMB control number 3046-0007 and assign it a new PRA control number. Further, the EEOC is not submitting a request to approve Component 2 of the EEO-1 collection. Its notice was published in the Federal Register March 23, 2020. After evaluating the comments and the public hearing, the EEOC is now seeking PRA authorization from OMB to continue to collect EEO-1 data for calendar years 2019, 2020, and 2021. To minimize confusion in light of litigation involving Component 2, the EEOC is asking OMB to approve Component 1 under a new OMB control number, thereby separating it from the collection of Component 2 data under OMB control number 3046-0007 that was ongoing until February 2020.. Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of the notice to www.reginfo.gov/public/do/PRAMain. Find this particular information collection by selecting "Currently under 30-day Review-Open for Public Comments" or by using the search function.   Source:  CCH  3/24/20

NLRB delays new election rules to June 1: The National Labor Relations Board (NLRB) has delayed implementation of its new representation case rules to June 1, 2020. (For more on the new rule, which was supposed to be effective on April 16, 2020, see Labor Board: Upcoming New Election Rule Relieves Employers of Many Burdens of Quickie Election Rule.) The NLRB previously announced suspension of all representation elections, including mail ballot elections, through April 3, 2020. The NLRB could extend the suspension if necessary.  The NLRB’s 45-day delay, contained in its Notice of Extension of the Effective Date of Defendant National Labor Relations Board’s Representation-Case Procedures Rule, was in response to a March 18 request by Judge Ketanji Brown Jackson (of the U.S. District Court for the District of Columbia), who is hearing a lawsuit filed by the AFL-CIO to block the new rule.  Source: Jackson Lewis 3/22/20

FMLA for NFL games?  An individual with diabetes worked as a machine operator for International Paper Company in New Jersey. He used intermittent FMLA for issues related to his impairment but was eventually was fired after a supervisor saw him post on Facebook that he was in Dallas attending a Cowboys-Eagles football game when he had called out, citing a need for FMLA leave. Pizarro sued, claiming the employer interfered with his FMLA rights and retaliated against him for exercising those rights. The court granted summary judgment for the employer, rejecting Pizzaro’s argument that the close temporal proximity between his leave and his termination showed retaliation, pointing out that Pizarro was first approved for FMLA leave by the company 17 years earlier and that it had granted his requests with no problem until his termination. The court also noted that an employer’s "honest belief" that its employee misused FMLA leave can defeat a retaliation claim (Pizarro v. International Paper Company, No. 19-5081 (D. N.J., March 3, 2020).  Source:  HR Dive 3/16/20