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Quick Hits - September 16, 2020

U.S. DOL updates FFCRA regulations:  The U.S. Department of labor updated their FFCRA regulations to conform with the Southern District of New York’s August 3, 2020 decision invalidating certain parts of the regulations.  More specifically, the updated regulations reaffirm and provide additional explanation for the requirement that employees may take FFCRA leave only if work would otherwise be available to them.  It reaffirms and provides additional explanation for the requirement that an employee must have employer approval to take FFCRA leave intermittently, revises the definition of “health care provider” to include only employees who meet the definition of that term under the Family and Medical Leave Act, clarifies that employees must provide required documentation supporting their need for FFCRA leave to their employers as soon as practicable, and corrects 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 revisions to that temporary rule will become effective immediately upon publication in the Federal Register

OFCCP released new CSAL list including construction:  OFCCP has released the next round of anticipated audits.  The 2020 CSAL is included in OFCCP’s FOIA website.  The list has a total of 2,250 establishments and includes contractors selected for new accommodation and promotion focused reviews.  There is a separate list of 200 Construction contractors selected for audit.  This is the first time construction contractors have been included on the CSALs since the release of the new Construction Technical Assistance Guide.  As with past lists, the CSAL is an advance notice of audits to be scheduled in the future.  Contractors will be notified of the actual commencement of their audits by receipt of a Scheduling Letter.  OFCCP is still in the process of scheduling audits identified on previous CSAL lists and has just begun scheduling VEVRAA Focused Reviews.  Source: Jackson Lewis 9/11/20

Once COVID-19 subsides, telecommunication may not be a reasonable accommodation: The EEOC has updated its guidance for ADA under COVID-19 in D.15 and D.16: "The employer has no obligation under the ADA to refrain from restoring all of an employee's essential duties at such time as it chooses to restore the prior work arrangement, and then evaluating any requests for continued or new accommodations under the usual ADA rules." While experts have speculated that businesses that transitioned their operations online at the height of the pandemic may have a tough time refusing such telework requests going forward, the new commission guidance suggests the landscape won't change.  It will still be a case by case basis.  The current telecommunicating situation could provide evidence that it wouldn’t be a hardship to employers.  Source:  Law360 9/8/20

Survey says salary budget to remain flat at 3% in 2021: Companies are showing a steady hand in salary planning in the midst of the global pandemic, according to Salary.com's annual U.S. and Canada National Salary Budget Survey. The 2021 median salary increase budgets are expected to remain flat at 3.0% for the 10th consecutive year, according to the survey.   The average 2020 actual merit increase of 2.3%, however, fell from a 2.6% increase in 2019 and is substantially lower than the 2.6% increase that was predicted for 2020 in last year's survey. The drop in the 2020 average merit increase clearly reflects COVID-19's impact on the economy. The projected recovery to an average 2.6% merit increase next year indicates that employers are optimistic about an economic recovery in 2021 and hope to restore some lost pay as a result. Salary structure increases are following a similar trend in the face of the economic recession and historically high unemployment rates. After hovering in the 1.7% - 2.0% range for most employees in 2018 and 2019, the average salary structure increase fell to the range of 1.3% - 1.6% in 2020 and is generally expected to stay the same in 2021. Median salary structure increases, however, are staying relatively stable at 2.0% for most employees. Source:  CCH 9/10/20

California expands its FMLA law to employers with 5 employees in state:  A bill waiting to be signed would expand the California Family Rights Act to make it an unlawful employment practice for employers with five or more employees to refuse to grant an employee’s request to take up to 12 workweeks of unpaid protected leave during any 12-month period to bond with the employee’s new child or care for themselves or a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner.  This bill reduces the threshold to 5 employees from 50 and increases the definition for whom the time-off is allowed.  Further, employers are required to provide 12 workweeks of unpaid protected leave during any 12-month period due to a qualifying exigency related to the covered active duty or call to covered active duty of an employee’s spouse, domestic partner, child, or parent in the U.S. Armed Forces.  Finally, the expanded leave provisions would apply to individuals with at least 1,250 hours of service with the employer during the previous 12-month period, unless otherwise provided.  Source:  CCH 9/10/20

Quick HitsImproper applicant testing costs Walmart $20 million:  Walmart, Inc. will pay $20 million, stop using a pre-employment test, and furnish other relief to settle a companywide, sex-based hiring discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC).  According to the EEOC’s lawsuit, Walmart conducted a physical ability test (known as the PAT) as a requirement for applicants to be hired as order fillers at Walmart’s grocery distribution centers nationwide. The EEOC said the PAT disproportionately excludes female applicants from jobs as grocery order fillers. The test violated Title VII of the Civil Rights Act of 1964.  Employers using such tests must prove the practices are necessary for the safe and efficient performance of the specific jobs. Even if this necessity is proven, such tests are prohibited if it is shown there are alternative practices that can achieve the employer’s objectives but have a less discriminatory effect.  Source:  EEOC 9/10/20

Telehealth may have had bump because of COVID-19 but is not preferred:  Telehealth claim lines increased 4,132% from June 2019 to June 2020, jumping from just 0.16% of all medical claim lines to 6.85% as patients turned to virtual care amid the Coronavirus pandemic, according to new data from Fair Health's monthly tracker.  However, the year-over-year increase was smaller than in May, when telehealth claim lines from the privately insured population jumped 5,680%. Virtual care claims fell 21% from May to June as states began to resume in-person treatment for non-emergency medical care, allowing patients to return to their doctor. However, telehealth usage remains extremely high compared with pre-COVID-19 utilization.  It may be that once the COVID-19 crisis comes back to normal, telehealth will not be the preferred option.  Source:  HR Dive 9/10/20

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