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Summary of Answers at 8 on October 14th

Recent Legal Updates:

Important E-Verify Compliance News:

  • Starting on November 5, 2020, E-Verify will begin notifying employers when they are out of compliance with the requirement to take action on Tentative Non-confirmations (TNCs) within 10 federal government working days.
  • For more information on how to handle a TNC, review the TNC steps on the E-Verify website.
  • TNC cases that remain open and without action for an extended period of time may suggest that your company is not referring TNC cases to the Social Security Administration or Department of Homeland Security if an employee chooses to take action, or you are not closing the case when an employee chooses not to take action to resolve the TNC. Both are violations that may lead to compliance action, up to and including termination of your E-Verify account.
  • Completing the TNC process strengthens E-Verify system integrity and helps ensure employers close E-Verify cases according to program requirements.

Other Topics Covered in this Week’s Answers at 8:

Politics and Halloween in the Workplace:

Politics is an emotional topic in today’s climate and it is important to remind your employees of the basics—civility, respect and responsibility. 

Employers may want to consider having a morning or pre-shift meeting on November 4th (the day after the election) to remind employees of the proper way to demonstrate feelings and the need for respect in the workplace. 

If or how your office will celebrate Halloween also is something to think about, particularly with the potential for political costumes. 

  • Participation should be voluntary and those who opt out should not feel like “fun-suckers” or feel the need to explain themselves.
  • Consider each group of employees – Are there customer-facing employees where it would not be appropriate or a manufacturing setting where PPE could interfere? There is nothing worse than something meant to be fun turning into an employee relations nightmare.
  • Make clear your guidelines, asking employees to avoid:
    • Sexy or revealing clothes
    • Political costumes; what is funny to one may be offensive to another
    • Racial/cultural stereotypes (blackface, dressing in “warpaint”)
    • Fake (or real) weapons
    • Costumes that would restrict the employee from doing their job (such as a  mummy costume that would restrict the use of their arms) and nothing that would cause a safety concern for the employee or the workplace (trip and fall hazards, for example).

COVID / FFCRA Review: 

CircumstanceIsolation/Quarantine Period
Employee has tested positive or has COVID symptoms (unless otherwise diagnosed)Employee needs to stay home for at least 10 days since symptom onset or test whichever is earlier— and 24 hours without fever (and no fever-reducing meds) plus improvement of other symptoms
Employee had close contact with a presumed COVID-19 positive individual (person either tested positive or has symptoms) but will not have further contactEmployee needs to stay home for 14 days since his/her last exposure to the person UNLESS the employee (1) has had confirmed COVID within the last 3 months; (2) has recovered; and (3) remains symptom-free.
Same as above, but the employee cannot avoid further contact with the individual (for example, they live in the same house).EE needs to stay home for 14 days after the person who has COVID meets the criteria to end home isolation.
  • Early Return: Employees who are in quarantine due to contact CANNOT return early because of a negative test. The 14-day incubation period may mean that they can test positive anytime during that period.
  • Testing for Return to Work: In general, employers are allowed to test employees before they return to work, but they may not require a test-based strategy for positive employees to return to work. Focus on the time-based strategy. If an employee wishes to return early, a doctor’s note should be a requirement. (In the case a doctor approves an early return, it is generally due to two negative tests at least 24 hours apart.)
  • FFCRA (currently set to expire 12/31): Employees who are quarantined based on a healthcare provider or agency recommendation or who are awaiting diagnosis and have symptoms would be paid for up to two weeks under the EPSL portion of the FFCRA if your company is under 500 employees. If they exhaust that two-week leave, other company leave may apply if another event occurs. However, if an employee takes the leave and does not use it to overlap with the first two weeks of unpaid EFML, they may still take the full 12 weeks of EFML. (Remember that EFML is a part of FMLA and the total leave available for any type of FML leave is 12 weeks.)
  • “Contacts of contacts”: If your employee has had contact with a primary contact

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