When Should Managers Call HR?
When one thinks of contacting the HR department, it's often associated with filing a complaint or discussing a workplace issue that is in need of a resolution. There are often more reasons as to why the HR department needs to be contacted. Read this blog post to learn more.
Employers expect supervisors to resolve some issues on their own and to report other things to human resources—or possibly to in-house counsel—rather than to resolve them independently.
But do you know which is which? For example, you probably know that you should report to HR all complaints of unlawful discrimination, harassment or retaliation, even if:
- The employee requests that the complaint be kept confidential.
- The employee implores the supervisor not to consult with HR.
- The complaint appears to lack merit.
But in other instances, the line is less clear. For example, if an employee is frequently late, it's your job to resolve the issue by confronting the employee about his lateness and handling it according to established company policies. But what happens if the chronically tardy employee responds by saying that he has been late because of chemotherapy appointments? That's the kind of information you need to report to HR so a determination can be made about whether a work accommodation is appropriate.
Here are some other clarifications of when to report in suspect categories:
WAGE COMPLAINTS
An employee complaint about not being paid as much as he deserves usually is an employee relations issue, not a legal issue. But when an employee complains that the employer has failed to pay him for time worked or has made improper deductions from his pay, savvy supervisors will see legal red flags. For nonexempt employees, improper deductions may include things like not paying for short breaks. For exempt employees, improper deductions may include deductions inconsistent with the salary basis requirement of the overtime regulations of the Fair Labor Standards Act (FLSA), such as not paying an exempt employee for a holiday when the employer is closed.
By immediately reporting a wage complaint to HR, you let the organization determine whether the complaint has merit. If no money is owed or no improper deductions made, HR can correct—or at least try to correct—the employee's misunderstanding. On the other hand, if there was a mistake, HR can correct it before the employee files a complaint with an administrative agency or court. This should go a long way toward minimizing the employer's exposure to liquidated damages for willful violations of the FLSA, and it also may mitigate an employer's liability under state wage and hour laws, whose requirements and penalties are often more stringent than federal law.
Remember, you must report even minor wage claims. A single employee's small wage loss may signal a systemic problem affecting other employees—in other words, a class action waiting to be born.
ALLEGATIONS OF WRONGDOING BY OTHERS
More and more employees are "blowing the whistle" on alleged wrongs that may not directly affect their terms and conditions of employment—alleged corporate fraud, for example. Managers should report immediately complaints of criminal or fraudulent activity, or violations of statutes such as the Sarbanes-Oxley Act. You also should report alleged violations of core employer policies that may have material legal and business consequences, such as conflict of interest policies, business ethics standards or codes of conduct.
DISCLOSURE OF MEDICAL INFORMATION
Any disclosure of a serious health condition or a physical or mental impairment by a job applicant or employee should be reported to HR—even if the applicant or employee doesn't specifically seek an accommodation. During interviews, you may ask applicants whether they can perform the essential functions of the job for which they have applied—but you may not pursue any medical inquires before making a conditional offer of employment. Likewise, where a current employee's performance or behavior is below standard, managers need to focus on the deficiencies—and not inquire or speculate as to any suspected medical reason that may underlie them.
But what if an applicant says that he cannot perform a particular function because of clinical depression, or an employee acknowledges her performance deficiencies but says that lethargy resulting from her heart condition has caused them? In these cases, even though there was no direct request, the disclosure puts the employer on notice that the applicant or employee may need an accommodation. Accordingly, the employer—that is, HR and not you—may need to begin the interactive process to determine whether a reasonable accommodation is needed.
ACCOMMODATION OR LEAVE REQUESTS
An applicant or employee need not use the legal words "Americans with Disabilities Act (ADA) accommodation" or "Family and Medical Leave Act (FMLA)" to trigger statutory rights. The key is whether a reasonable supervisor would recognize the individual's communication as a request for an accommodation or a leave of absence. With regard to accommodations, for example, you should report requests for help, support, job changes, etc. if the employee—contemporaneously or previously—has disclosed the existence of a serious health condition or impairment.
As for leave, report requests for "time off" for medical or other potential FMLA situations, even if the employee does not utter "FMLA." Even if the employee clearly is not eligible for FMLA leave, you need to report a request for time off because a leave could be a reasonable accommodation under the ADA regardless of FMLA eligibility.
EVIDENCE OF UNION ACTIVITY
If 30 percent of eligible employees in an appropriate bargaining unit sign union authorization cards, the union can petition the National Labor Relations Board for an election. Even if an employer wins the election, the victory can be very costly. The key to avoiding elections is early detection of and rapid response to union activity. But employers often begin their counteroffensive only after the union has obtained the 30 percent showing of interest. Sometimes, this is because supervisors fail to report to HR what they may see as "isolated" signs of union support. A bundle of isolated, minor occurrences may amount to evidence of a serious union campaign.
Direct signs of union activity would include an employee handing out a union flier in the parking lot or wearing a pro-union T-shirt. Indirect warning signs would include unusual off-site gatherings of employees—at barbecues, bowling alleys and bars. You also need to be aware of the restrictions on your behavior under the National Labor Relations Act. Supervisors cannot:
- Spy on employees to see who may be engaging in union activity.
- Promise employees benefits for refraining from union activity.
- Interrogate employees as to whether they or others are engaging in union activity.
- Threaten or take adverse action against employees for engaging in union activity.
While you cannot spy, you can report what you see in plain view. And while you cannot interrogate employees about their union sympathies, you can report what is volunteered or what you inadvertently overhear.
GOVERNMENT COMMUNICATIONS
Inform HR immediately if you receive any communication from a government agency, official or entity, including everything ranging from a charge of discrimination filed with the EEOC or other agency to an on-site visit from a U.S. Department of Labor investigator asking to review certain files in connection with alleged overtime pay violations of the FLSA. It's not your duty to decide whether and to what degree to cooperate. Sometimes, government officials ask for more than they are entitled to have. And even where they have a legal right to the requested information, the manner in which the employer communicates can determine the legal outcome and damages that may flow from it. If an official contacts you by phone, be polite and say, "Our organization/company will cooperate with your request; however, I do not have the authority to respond. Let me give you the name and telephone number of the HR professional with whom you should speak. I also am going to contact HR right now."
LAWYER COMMUNICATIONS
Report immediately—and don't respond—to any subpoenas or letters from lawyers who do not represent the employer. In case of "friendly calls" from lawyers who are "just curious" about a few things, don't provide any information. There is no duty to cooperate with an attorney on a fishing expedition. Instead, say something like this: "I do not have authority to talk with you. Please give me your name and number and I will forward them to HR."
SIGNS OF WORKPLACE VIOLENCE.
Not all workplace violence is preventable. But sometimes there are warning signs that supervisors need to report to HR and/or security immediately, including:
- Discussions of or particular fascination with perpetrators or victims of violence.
- Talk of weapons that seems abnormal in frequency or content.
- Statements about hearing voices or receiving signals.
- Threats of suicide.
SOURCE: Segal, J. (21 July 2020) "When Should Managers Call HR?" (Web Blog Post). Retrieved from https://www.shrm.org/resourcesandtools/hr-topics/people-managers/pages/when-should-managers-call-hr.aspx
Employees Look to HR to Evaluate COVID-19 Data Before Reopening
Many employers are looking at the opportunity to allow employees to return to their workplace, but before returning many are asking and reaching out to their HR departments to look and rely on local, state, and federal data in order to make a safe transition back into office. Read this blog post to learn more.
When national staffing and recruitment firm Addison Group began putting in place the necessary measures to reopen the company's offices in Texas, Peg Buchenroth, senior vice president of human resources, relied on local, state and federal data to make the transition.
The company's employees switched to remote work during the week of March 16. Since then, Buchenroth and her colleagues have been monitoring coronavirus cases in Texas, where the numbers are changing fast.
Recent data from Texas health authorities demonstrates why it's important for human resource managers to follow infection and hospitalization rates in different geographies.
According to Texas Department of State Health Services data, nearly 75,000 people tested positive for the coronavirus in the first week of June and more than 1,800 people died of COVID-19. As of July 19, nearly 4,000 people had died from COVID-19 in the state, and the death toll is expected to rise further as reported cases have climbed to over 330,000.
Texas Health and Human Services has posted a warning on its website: "Please note that all data are provisional and subject to change. Probable cases are not included in the total case numbers."
Texas Gov. Greg Abbott began clearing the way for businesses to reopen in May to restart the state's economy but had to roll back those plans after COVID-19 deaths began to rise. In the midst of this, the Addison Group reopened its San Antonio/Houston offices on May 4, its Dallas location on May 18 and its Austin facility on May 20. The company closed its Texas offices for the July 4 holiday and has kept them closed as it considers what to do next.
"While we successfully opened our Texas offices in May for employees who wanted to return to in-person work, we've decided to close these locations and will monitor the situation in case we need to reassess," Buchenroth said. "The safety of our employees remains Addison Group's top priority, and we will continue to leverage federal, state and local data to inform any future decisions."
She said employees who return to the office will need to adhere to Centers for Disease Control and Prevention guidelines, such as wearing a mask and maintaining 6 feet of physical distance from others.
"We want to make sure that employees feel safe when they return to the office," Buchenroth said.
She added that the company takes into consideration the many factors that can influence an employee's decision to return to the office, including child care needs, elder care responsibilities, and serious underlying medical conditions that put individuals at high risk of developing a severe illness from COVID-19.
Coronavirus and COVID-19
Using Data to Inform Reopening
As more businesses reopen, employers will have to decide if going to the office is safe based on the data received from local health authorities. Insight from that data will determine how employers will design their workspaces to allow for adequate social distancing within an office, how many workers will be allowed in the office at a time and whether remote work will continue for the foreseeable future.
John Dooney, an HR Knowledge Advisor at the Society for Human Resource Management, said he has noticed an increase in the number of inquiries from HR professionals about new federal, state and local measures and how to safely reopen businesses. He added that while health officials have gained a better understanding of the coronavirus during the past four months, there is still a lot more to learn.
"The pandemic is evolving, and we haven't had the luxury of time to get the information we need," Dooney said. "I think it's important for HR managers to continually review data from authoritative resources."
HR needs to be aware of the changes states are making as they reverse previous decisions on reopening their economies given increasing coronavirus infections and death rates in states like Arizona, Florida and Texas. The current crisis, Dooney said, should prompt HR professionals to be more involved with their senior leadership teams in the decision-making process.
"HR executives should work with senior managers to come up with the best ideas that protect their employees," Dooney advised. "The leadership team should be looking at not only how to maintain the business, but also how to implement adequate protections."
Employers' responses will also depend on the work environment at each company. Hospitals, supermarkets, pharmacies and delivery services, for example, need employees at their worksites; many knowledge-based businesses, however, are better-suited to rely on remote workers.
Gavin Morton, head of people and financial operations at HR.com, said as discrepancies arise in the actual number of coronavirus infections and deaths caused by COVID-19, employees will want to know that their employers have seen the data, considered it carefully and are concerned about workers' safety.
"We all want to know exactly what's going on, but it is very difficult for medical professionals and coroners to quickly ascribe deaths to COVID-19 or other causes," Morton said. "It is logical that there are both more cases and more infections than are being reported, since the testing numbers are still relatively low, and we may not know for years what the true impact has been."
Morton added that employers are in a powerful position to reduce their employees' anxiety. "Employers need to read carefully to understand what the reliable facts are and use them to inform their employees rather than alarm them. Clarity, calm and honesty go a long way," he said.
Morton said HR professionals should consider and educate the leadership team in two key areas:
- How this information impacts the business and employees. Some data could have little to no impact on a company, depending on such factors as location and type of business, while other information could have a severe impact. An outbreak of cases in a city four hours away may not worry the organization's local employees, but if someone's parents live in that city, he or she may be personally very concerned.
- Employee sentiment. It is critical to understand how employees are feeling and how new data can affect their confidence in their safety.
Contact tracing, new coronavirus cases, new hospitalizations, and increases or drops in the number of people dying from COVID-19 will be critical data that will contribute to HR managers' planning.
Human resource professionals should remember, too, that the data are interrelated.
For example, Morton noted that while an increase in deaths reported is alarming, it doesn't necessarily mean that there are more cases; similarly, falling death rates may not mean that transmission today is low. Information about deaths is only one piece of the puzzle.
Developing measures to secure the safety and encourage the performance of employees during the second half of the year won't be easy, especially if there is suspicion that federal, state and local information on the COVID-19 crisis isn't accurate.
"The numbers are really important, and companies need to pay close attention to information which impacts their employees and their customers," Morton said. "While the data can help guide their decisions, HR leaders and company leaders still need to interpret the data. This is true for any information, and so the uncertainty around death reporting is no different. Company leaders need to use their best judgment based on their knowledge of their business, employees and customers."
SOURCE: Lewis, N. (20 July 2020) "Employees Look to HR to Evaluate COVID-19 Data Before Reopening" (Web Blog Post). Retrieved from https://www.shrm.org/resourcesandtools/hr-topics/technology/pages/hr-evaluate-covid19-data-before-reopening.aspx
Overview of COVID-19 Law and Guidance for Health and Welfare Plans
The business operations of many small and large companies have been significantly affected due to the coronavirus pandemic. During this time, health and benefit plans are also being affected. Read this blog post to learn more.
The COVID-19 pandemic has significantly affected the business operations of small and large employers alike. To mitigate the harm from the pandemic to employers, the government has enacted major legislation and issued numerous guidance in the past few months pertaining to COVID-19, including rules that address various aspects of employee benefits.
This article provides an overview of significant COVID-19 legislation and guidance related to employer-sponsored health and welfare benefit plans that has been enacted or issued to date.
Some of these changes are mandatory for group health plans. Other are optional. Employers should carefully review these rules to determine any compliance obligations as well as any opportunities to benefit their businesses and respective employees.
Mandated Coverage of COVID-19 Testing (Mandatory)
Effective March 18, 2020 and until the end of the national emergency period for COVID-19, the Families First Coronavirus Response Act (FFCRA) requires group health plans to cover:
- COVID-19 diagnostic testing.
- Certain items and services that result in an order for, or administration of, the testing.
Plans must provide this coverage without imposing any requirements for cost-sharing, prior authorization, or medical management.
CARES ACT
The Coronavirus Aid, Relief, and Economic Security Act (CARES Act), which was signed into law on March 27, 2020, amended the FFCRA's coverage mandate to:
- Expand the scope of COVID-19 diagnostic tests that must be covered.
- Include rules regarding the rate at which a plan must reimburse a health care provider for the mandated services.
- Require coverage of preventive services and vaccines for COVID-19 as of 15 days after such a service or vaccine is given an "A" or "B" rating in a recommendation by the U.S. Centers for Disease Control and Prevention (CDC) or U.S. Preventive Services Task Force.
ADDITIONAL GUIDANCE
On April 11, 2020, the FFCRA and CARES Act FAQs provided additional information about this COVID-19 mandate. Items included details on required coverage of COVID-19 antibody tests, rules regarding required disclosures of the new coverage to plan participants, and which items and services related to COVID-19 testing must be covered by a plan.
Continuation of Health Benefits During Certain Leaves of Absence (Mandatory)
The FFCRA also requires (with some exceptions) employers with fewer than 500 employees to provide certain paid sick leave and family and medical leave related to certain COVID-19 reasons, as follows:
- Paid sick leave. An applicable employer must provide two weeks of emergency paid sick leave (EPSL) to an employee who is unable to work (or telework) due to certain reasons related to COVID-19. Reasons include quarantining of an employee (due to a Federal, state or local order or advice from a health care provider) experiencing COVID-19 symptoms, caring for an individual who is quarantined, and caring for a child under age 18 whose school or child care provider is closed.
- Family and medical leave. The employer must also provide up to twelve weeks of expanded Family Medical and Leave Act (FMLA) leave (ten of which is paid) for an employee who has been employed for at least 30 days and who is unable to work (or telework) due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.
During FMLA leave, an employer is required to allow the employee to continue his or her group health coverage at the same premium rate as that of active employees. The DOL has also issued FAQs stating that employers must continue employees' coverage during EPSL, as well. Note, there are also implications for retirement plans under the FFCRA and CARES Act. Although those retirement plan rules are not discussed in this article, some of the CARES Act rules are conceptually similar for retirement plans (e.g., 401(k) plans may allow participants to take "Coronavirus-related" 401(k) plan distributions due to certain COVID-19 reasons).
High-Deductible Health Plans and Health Savings Accounts (Optional)
IRS GUIDANCE
IRS Notice 2020-15 (March 11, 2020), which was issued prior to passage of the FFCRA and CARES Act, provided that a high-deductible health plan (HDHP) will not lose its HDHP status if it covers COVID-19 testing and treatment before the statutory minimum HDHP deductible is met. Therefore, the plan can cover those COVID-19 related services without causing participants to be ineligible to contribute to a health savings account (HSA). IRS Notice 2020-29 (May 12, 2020) clarified that the provisions in Notice 2020-15 apply to an HDHP's reimbursement of expenses incurred on and after January 1, 2020.
CARES ACT
The CARES Act amended the HSA rules to provide that, for plan years before December 31, 2021, an HDHP does not lose its HSA-eligible status if it covers telehealth and other remote healthcare services before the HDHP deductible is met. This CARES Act provision is broader than the IRS Notices, as it provides that an HDHP can cover telehealth services regardless of whether the services are related to COVID-19. The CARES Act also allows participants to use their HSAs, health flexible spending accounts (FSAs), and health reimbursement arrangements (HRAs) to pay for certain over-the-counter drugs without a prescription as well as certain menstrual care products.
Extended Form 5500 Filing Deadline for Certain Plans (Optional)
IRS Notice 2020-23 (April 9, 2020) extended certain deadlines for a plan to file the required annual Form 5500. Under Notice 2020-23, the Form 5500 deadline was extended to July 15, 2020 for any plan whose plan year ended in September, October, or November 2019 (or any plan that was given a filing extension between April 1 and July 15, 2020). Ordinarily, a plan must file its Form 5500 (absent an extension) by the last day of the seventh month following the end of the plan year.
Relief for Certain Disclosures Required by ERISA (Optional)
EBSA Disaster Relief Notice 2020-01, which was issued by the DOL on April 28, 2020, extended the deadlines for plans to provide certain notices and disclosures under Title I of the Employee Retirement Income Security Act of 1974 (ERISA). Under Notice 2020-01, a plan will not be treated as violating ERISA if it fails to timely furnish a notice, disclosure, or document required by Title I of ERISA between March 1, 2020 and 60 days after the announced end of the national emergency declaration for COVID-19. The plan fiduciary, however, must act in good faith to furnish the notice, disclosure, or document as soon as administratively practicable. For this purpose, a plan fiduciary can meet the "good faith" standard by furnishing a document electronically if it reasonably believes that the recipient has access to electronic communication.
Extensions of Certain Plan Deadlines (Mandatory)
A joint notice issued by the DOL and IRS (published May 4, 2020) required group health plans to extend certain timeframes for participants during the "outbreak period" (defined as the period from March 1, 2020 until 60 days after the announced end of the national emergency for COVID-19). Those plans are required to disregard the outbreak period for purposes of determining the following periods and dates:
- The 30-day/60-day special enrollment period under the Health Insurance Portability and Accountability Act (HIPAA).
- The 60-day deadline for a qualified beneficiary to elect continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA).
- The deadlines for a COBRA qualified beneficiary to pay his or her required COBRA premiums.
- The deadline for an individual to notify the plan of COBRA certain qualifying events (e.g., divorce).
- The deadlines for a participant to file benefit claims, appeals, and external review requests with the plan (or to perfect an external review request).
Because of this joint notice, a group health plan must essentially "pause" the above deadlines during the outbreak period. For example, if an individual experienced a COBRA qualifying event on March 1, 2020, the individual would have until 60 days after the end of the outbreak period (rather than 60 days after March 1) to elect COBRA coverage. This is because the joint notice requires a group health plan to pause the 60-day timeframe for COBRA elections during the outbreak period. Also, because the joint notice was issued on May 4 and is retroactive to March 1, plans may be required to re-process previous claim denials that were based on a participant's failure to meet one of the above deadlines between March 1 and May 4.
Cafeteria Plans and Flexible Spending Accounts (Optional)
2020 MIDYEAR ELECTION CHANGES
IRS Notice 2020-29 (May 12, 2020) relaxed the rules regarding cafeteria plan pre-tax elections in light of the COVID-19 pandemic. Under Notice 2020-20, employers may (but are not required to) amend their cafeteria plans to allow participants to make the following mid-year, pre-tax election changes in 2020:
- An election to enroll in the health plan by an eligible employee who previously declined coverage (e.g., someone who waived coverage during open enrollment).
- An election to change plan options (e.g., from an HMO to a PPO) or add dependents.
- An election to drop coverage by a participant.
- An election to enroll in or drop health FSA or dependent care FSA coverage or to increase or decrease health FSA or dependent care FSA contributions.
An employer that wishes to adopt any of all of the above cafeteria plan changes must disclose the changes to employees and amend its cafeteria plan by no later than Dec. 31, 2020 (i.e., an amendment is not required in advance of making the changes).
EXTENDED GRACE PERIOD TO INCUR FSA CLAIMS AND INCREASE OF MAXIMUM HEALTH FSA CARRYOVER AMOUNT
Notice 2020-29 also permits employers to amend their health and dependent care FSAs to allow employees to incur eligible claims through the end of the 2020 calendar year for any FSA plan year (or for any FSA grace period that ends in 2020). For example, if a health FSA has a grace period until March 15, 2020 for a participant to incur eligible claims for the 2019 plan year, the FSA can allow participants to incur expenses through 2020 and use their 2019 elections to pay for those expenses.
This change does not apply to FSAs with a carryover provision. IRS Notice 2020-33 (May 14, 2020), however, provides for a permanent FSA carryover increase based upon annual indexing. For the 2020 plan year, employers may amend a cafeteria plan with carryover provision to allow participants to carry over up to $550 in unused health account balances in the 2021 plan year. An employer that adopts the extended FSA grace periods or the increased carryover limit must amend its cafeteria plan or FSA (as applicable) by no later than December 31, 2021.
Tax-Free Payment of Employees' Student Loans (Optional)
The CARES Act amended Section 127 of the Internal Revenue Code (education assistance programs) to permit employers to pay up to $5,250 of an employee's student loans on a tax-free basis. This provision applies from the date of enactment of the CARES Act (March 27, 2020) through the end of 2020. The payment must be for either the principal or interest of a qualifying education loan incurred by the employee, and the employer can make payment either directly to the lender or as a reimbursement to the employee.
Takeaways for Employers
As employers grapple with the impact of the COVID-19 pandemic and return to normal business operations, it is important for them to be aware of their compliance obligations under the FFCRA, CARES Act and other guidance issued by governmental agencies. Employers should also carefully review the guidance and legislation for potential avenues of benefit for their business and employees.
Additional guidance for both mandatory and optional items is likely forthcoming as well, and COVID-19 continues to have a major impact on both companies and individuals as new infections spike in numerous states. Accordingly, employers would be well-advised to keep a close eye out for new legislation and guidance in the coming months and periodically evaluate their benefits programs for compliance and competitive considerations.
SOURCE Tyler Hall, A.; Schillinger, E. (16 July 2020) "Overview of COVID-19 Law and Guidance for Health and Welfare Plans" (Web Blog Post). Retrieved from https://www.shrm.org/resourcesandtools/hr-topics/benefits/pages/overview-of-covid-19-legislation-and-guidance-for-benefits-plans.aspx
The Saxon Advisor - July 2020
Compliance Check
what you need to know
SF HSCO Expenditures. The last day to submit SF HSCO expenditures, if applicable*, for Q2 is July 30, 2020. *Applicable for employers with 20+ employees doing business in SF and Non-Profits with 50+ employees.
Form 5500 and Form 5558. The deadline for the 2019 plan year’s Form 5500 and Form 5558 is July 31, 2020 (unless otherwise extended by Form 5558 or automatically with an extended corporate income tax return).
Form 8955-SSA. Unless extended by Form 5558, Form 8955-SSA and the terminated vested participant statements for the plan year of 2019 are due July 31, 2020.
Form 5558. Unless there is an automatic extension due to corporate income tax returns, a single Form 5558 and 8955-SSA is due by 2½ months for the 2019 plan year.
Form 5330. For failed ADP/ACP tests regarding excise tax, Form 5330 must be filed by July 31, 2020.
401(k) Plans. For ADP/ACP testing, the recommended Interim is due August 1, 2020.
COVID and the ADA and EEOC
Join us for this interactive and educational Saxon U seminar with Pandy Pridemore, The Human Resources USA, LLC, as we discuss COVID and the Americans with Disabilities Act (ADA) and Equal Employment Opportunity Commission (EEOC).
Medicare 101: A Quick Guide For Employers
Bringing the knowledge of our in-house advisors right to you...
Medicare is a government-funded health insurance program for those aged 65 and above, those under 65 with certain disabilities, and those with End State Renal Disease (ESRD) or Amyotrophic Lateral Sclerosis (ALS). Employers that offer group health insurance plans to their employees have an interest in learning how employees’ entitlement to Medicare benefits can affect the administration of those plans.
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Fresh Brew Featuring Saxon's Holiday Favorites
In celebration of Independence Day this past month, the Saxon crew has decided to share one of our favorite summer recipes for this month’s Fresh Brew! We hope you all have a safe and happy holiday!
This Month's #CommunityStrong:Each member of Saxon will be choosing their own charity that they want to make a positive impact on!
This May, June & July, the Saxon team and their families will be choosing their own charity that they would like to make a positive impact towards!
Are you prepared for retirement?
Saxon creates strategies that are built around you and your vision for the future. The key is to take the first step of reaching out to a professional and then let us guide you along the path to a confident future.
Monthly compliance alerts, educational articles and events
- courtesy of Saxon Financial Advisors.
Health Care Nondiscrimination Notice Requirement Is Going Away
The Department of Health and Human Services' has removed requirements that employers issue non-discrimination statements to employees that will go into effect on August 18, 2020. Read this blog post to learn more.
On Aug. 18, 2020, the Department of Health and Human Services' (HHS's) finalized changes to the Affordable Care Act's Section 1557 nondiscrimination rules will take effect, removing requirements that employers issue health care nondiscrimination statements to employees and add health care nondiscrimination taglines to employee communications.
Prior to the changes under a final rule HHS published on June 19, employers had to ensure that they, along with their insurers (for fully insured plans) or third-party administrators (for self-insured plans), abided by a 2016 HHS rule requiring employer-sponsored plans to:
- Create and maintain a notice of health care nondiscrimination.
- Include it in "significant communications" along with taglines in 15 different languages advising individuals of the availability of language assistance.
- Include similar taglines for other communications but only in three different languages.
These notices are still required until Aug. 18.
"Now more than ever, Americans do not want billions of dollars in ineffective regulatory burdens raising the costs of their health care," said Roger Severino, director of the Office for Civil Rights at HHS.
Less Paperwork and Lower Costs
"The final rule eliminated the requirement to post the discrimination notice and add taglines," said John Kirk, an attorney at law firm Graydon in Cincinnati. "The final rule also eliminated the requirement that the discrimination notice and taglines be included with all significant publications sent by the organization. This change will be a significant cost and administrative timesaver for most entities."
Employers offering employee benefit plans that were subject to the prior 2016 rule "should review any notice and disclosure obligations and may begin revising their disclosures to remove the nondiscrimination statement and required taglines," Kirk advised.
"This is welcome news for employers that were required to create and maintain these complicated notices," according to compliance firm HUB International. "In the preamble to the new final rules, HHS stated that the notices were costing employers and other entities hundreds of millions to billions of dollars, but were not, in HHS's view, providing meaningful additional help to individuals."
HUB noted that "the onerous notice requirement is gone, but nondiscrimination rules still generally apply," prohibiting discrimination in health care on the basis of race, color, national origin, sex, age or disability.
Overshadowed by Transgender Controversy
Most coverage of the HHS final rule focused on its controversial rollback of anti-discrimination protections based on gender identity, which overshadowed the rule's repeal of the notice and tagline provisions under the 2016 regulation.
A coalition of LGBTQ groups and health care providers are suing the Trump administration, alleging the new HHS rule conflicts with the Supreme Court's June 15 decision in Bostock v. Clayton County, Ga., which found that the prohibition against sex discrimination in the workplace under Title VII of the Civil Rights Act covers sexual orientation and gender identity.
SOURCE: Miller, S. (16 July 2020) "Health Care Nondiscrimination Notice Requirement Is Going Away" (Web Blog Post). Retrieved from https://www.shrm.org/resourcesandtools/hr-topics/benefits/pages/health-care-nondiscrimination-notice-requirement-is-going-away.aspx
How to Prosper When HR Is Understaffed
The HR department often has many things on its plate when the company as a whole has a lack of staff, but what happens when the HR department has a lack of staff that may be caused due to many situations? Read this blog post to learn more.
One of the hardest parts about working in HR is helping a company's managers succeed when the company is understaffed. But what about when the HR department is understaffed, perhaps due to summer vacations, unfilled positions, or team members working fewer hours as they wrestle with child care or illness during the COVID‑19 pandemic?
HR leaders, whether managing a small or large team, can find the weight of a company's needs overwhelming when their department is short-staffed. But HR experts say there are a range of strategies to help address this situation.
"When an HR team is short-staffed, one of the best things to do is try to understand the goals of the company during this time," said Melodie Bond-Hillman, senior manager of HR and administration at XYPRO Technology Corp. in Simi Valley, Calif. She has had many cohorts reach out and express concern that their jobs have expanded out of scope during the coronavirus outbreak as they attempt to handle a range of new duties amid staff shortages. "They need to try and figure out how long term the staffing issue might be to know how to strategically plan," Bond-Hillman said.
Conversely, it's important not to over-promise when seeking staffing solutions for the department in such an unpredictable environment, said Buck Rogers, a vice president at Keystone Partners, a Raleigh, N.C., executive coaching and outplacement firm. "Don't set your team up for a fall," he said. "You need to keep their spirits up as much as possible, but giving them false hope can make them less likely to trust you in the future."
Rogers recommended against giving the HR team exact dates on when operations will return to normal, because no one can say for sure. Instead, he suggested being supportive—but not unrealistic.
Consider Investing in Automation
One positive step an HR leader can take during a period of uncertainty is to look for opportunities to automate required processes to save time, Bond-Hillman said.
"An important question to research is, how well is your HR system set up? Is it driving a lot of your process so you can automate when possible and give employees a strong range of self-service access?" she asked. "Do you have apps so workers can get their benefit cards and policy questions easily answered without your team being called on to step in too often? From getting their pay stubs to making 401(k) changes, the process needs to give employees a chance to help themselves. These are areas HR may get lazy at when times are easier, but it makes a difference" when times are tougher, as they are today, she said.
Even with shortcuts in place, there are other steps that will help the team operate more effectively. One is to provide new opportunities for team members to broaden their contributions, perhaps by giving responsibilities to HR professionals who are ready for a new challenge.
"This is a chance for them to help you out," Bond-Hillman said. But you can also help HR team members advance their careers or become specialists. "Give them the opportunity to come through for the team and further their career."
And despite potential revenue shortfalls due to the faltering economy, now isn't the time to reduce training. After all, if team members are going to be able to assist you more, they'll need the training to succeed, Bond-Hillman said.
"Yes, there's a feeling you don't have time, but if you don't make the time, it will potentially be a disaster in executing the work," she said. "Many HR people struggle because not everyone is cross-trained."
Seek Inexpensive Support
Seeking part-time help from a temp or college intern is another popular option this summer, said Heather Deyrieux, SHRM-SCP, HR manager for Sarasota County, Fla., and president of the HR Florida State Council, a Society for Human Resource Management affiliate. "We've had an intern just for the first couple of weeks of the summer, and she has been very helpful," Deyrieux said. "You can even look for volunteers—there can be many of those, especially if it's remote work."
Keeping morale up also is important and may be achieved by making sure everyone in the HR department sees team leaders rolling up their sleeves and doing tasks that may have been handled by others before the pandemic. It's also wise for those leaders to keep their office doors open and be available early and late to help answer questions and address issues, Bond-Hillman said. "A team has to be just that–a team."
Debora Roland, a Los Angeles-based vice president of HR at CareerArc, said seeking opportunities to allow the team to recharge is critical. "Your team, however big it may be, is working tirelessly during these times, and showing appreciation can go a long way," she said. "One way to do this is to give team members time off when it's needed. We're all in such high-stress times, and providing days off to recuperate and reset can make a world of a difference."
If providing time off isn't possible given the workload, showing appreciation can help. "Give a gift certificate to their favorite restaurant or something else they like," Deyrieux said. "This way you show appreciation, but you also show them that you pay attention to their interests. People need to know they're not just another employee."
6 Ways to Support an Understaffed HR Team
- Identify the company's primary goals during the pandemic and share it with the team.
- Ease the team's hours through automation or help from a temp, an intern or a volunteer.
- Be in the trenches with team members by taking on menial tasks and arriving early and/or staying late.
- Show appreciation, even if just in a small gift.
- Give additional responsibility that could lead to a promotion.
- Provide training so your team members feel they're in a good position to take on new responsibilities.
SOURCE: Butterman, E. (09 July 2020) "How to Prosper When HR Is Understaffed" (Web Blog Post). Retrieved from https://www.shrm.org/resourcesandtools/hr-topics/organizational-and-employee-development/pages/how-to-prosper-when-hr-is-understaffed.aspx
Virtual walks and free chocolate? What workplace pros say the new office will look like
Working remotely has become a new workplace normal and may continue to be so. Although it may be difficult for younger generations to acclimate to this working situation, there may be some benefits to it as well. Read this blog post to learn more.
The traditional office’s days are numbered; the office of the future will be a “collaboration center” with a mix of skeleton staff and remote workers meeting through virtual team walks and group meals via home-delivered Zoom lunches.
Millennials and Generation Z will have problems networking in the new remote work world with fewer face-to-face meetings; and mental health and well-being benefits will become more important than ever before.
Those were some of the predictions of compensation and benefits professionals at the first virtual gathering of the WorldatWork 2020 Total Resilience conference — a digital substitute for an annual conference that was supposed to be held in Minneapolis this year, but was postponed in response to the global coronavirus crisis.
"The office environment will change,” said panelist Steve Pennacchio, senior vice president of total rewards at Pfizer, during an online session on resilience on Wednesday. “Remote work is here to stay.”
Pennacchio said a number of companies will shut down their office space, which will have serious ramifications for commercial real estate and new entrants into the workforce, who will be at a particular disadvantage because of the limits of networking and source building through remote technology.
He suggested more virtual engagement tactics, including virtual walks or group activities, including having teams eat together with coordinated deliveries of lunches or chocolate. “Nothing hurts with chocolate,” he said. During the conference, which will continue with weekly panels through Sept. 2, organizers also hosted social events, including virtual trivia games and online networking.
Pfizer is investing $1 billion on development of vaccines and treatments for coronavirus, he noted. “Hopefully ours and others will work. The world needs more than one,” he said.
Likewise, Susan Brown, senior director of compensation at Siemens, said her company has focused on four key areas of building a team, culture, management team and employees who can adjust to the new environment through virtual meet-and-greet sessions and lunches where all team members must be present visually.
“The relationship builds with seeing each other,” she said. “The camera on changes the dynamic more than a phone call.”
Brown also noted tremendous innovation around talent management happening during the coronavirus crisis. She said that progressive companies have made a quick shift to focus first on the mental health and well-being of staff as a priority, rather than having an emphasis on business metrics.
“The whole conversation changed to focus on people’s health and safely, how they were feeling and empathetic messaging rather than a focus on business results,” she said.
WorldatWork CEO Scott Cawood, who served as moderator, noted that employers’ responses are being closely watched by staff, and other companies.
“COVID-19 doesn’t define who you are; it actually reveals who you are,” said Cawood, sitting alone on a stage with a white chair and house plant, as panelists called in from around the country.
Kumar Kymal, global head of compensation and benefits at BNY Mellon, said the global financial services firm has 95 percent of staff working remotely.
"Times of crisis and change give us permission to rethink the way we do things, and it's an opportunity to decide what really matters to your organization," Kymal said, noting that the company announced that there will be no layoffs in 2020 to put staff at ease.
Management response should focus on “speed, speed, speed,” he said about responding to challenges under the coronavirus crisis, with special attention to empathetic corporate messaging.
Kymal said at his company, management focused on a new framework to address healthcare concerns globally, with a broad overview of their healthcare plans. Second, management focused on addressing stress and anxiety, particularly with attention to messaging and staff feedback. They also put an increased focus on well-being and resilience strategies, and accelerated a mental health program to allow employees to assess their ability to deal with stress. Finally, BNY Mellon improved social connections for managers to lead better on connecting with various teams.
Looking ahead to the return-to-work phase of the crisis, Kymal said the stakes are high. Challenges include dealing with temperature scans, wearing masks, closed cafeterias and social distancing.
“As we're starting to plan what the return to office looks like, it's clear to us it has the potential to become an awful, awful employee experience,” he said. “We really need to rethink and redesign. What does an office experience look like? That's front and center in my mind.”
SOURCE: Siew, W. (08 July 2020) "Virtual walks and free chocolate? What workplace pros say the new office will look like" (Web Blog Post). Retrieved from https://www.employeebenefitadviser.com/news/what-workplace-pros-say-the-new-office-will-look-like
Facial Analysis Technology in the Workplace Brings Risks
Technology is a forever-changing topic and a forever-advancing field. Most recently, facial recognition technology has been a topic of discussion when talking about technology. Read this blog post to learn more.
Facial recognition technology has been under the microscope as organizations and lawmakers re-evaluate its use in the wake of global protests about racial injustice. Technology giants Amazon, IBM and Microsoft all recently announced that they would stop selling facial recognition technology to police departments in the United States, citing the technology's potential for violating human rights and concerns about racial profiling.
Recent research has shined a light on some inherent dangers of using the technology. One study by MIT and Stanford University found that three commercially released facial analysis technologies showed skin-type and gender biases. The study found that the technology performed better for men and lighter-skinned people and worse for darker-skinned women.
The American Civil Liberties Union (ACLU) as well as other human rights groups and privacy advocates also have raised concerns about privacy and surveillance issues tied to use of the technology.
Evaluating Job Candidates
Some vendors in the human resources industry have long used facial analysis technology to help evaluate video interviews with job candidates. These artificial intelligence (AI) tools scan facial expressions and movements, word choice, and vocal tone to generate data that help recruiters make hiring decisions. Vendors say the tools can help reduce hiring costs and improve efficiencies by speeding the screening and recruiting of new hires.
But experts say that if these facial analysis algorithms aren't trained on large or diverse-enough datasets, they're prone to consistently identify some applicants—such as white men—as more employable than others. For example, the MIT and Stanford study found that one major U.S. technology company claimed an accuracy rate of more than 97 percent for a facial recognition algorithm it designed. Yet the dataset it was trained on was more than 77 percent male and more than 83 percent white.
Josh Bersin, a global HR industry analyst and dean of the Josh Bersin Academy in Oakland, Calif., said some HR vendors have embedded facial analysis technology into their video-interviewing tools with the goal of identifying job candidates' demonstrated stress, misrepresentations and even mood.
"These vendors have tried very hard to validate unbiased analysis, but they are taking risks by doing so," Bersin said. "The best solution is to use these tools very carefully and make sure you perform tests across very large samples before you trust these systems."
The use of facial analysis technology to evaluate job candidates is "very problematic," said Frida Polli, founder and CEO of the New York-based assessment company Pymetrics. "The science of the technology in terms of what it really says about someone is extremely new and not well-validated, and certainly not well-validated for HR uses," she said.
Results should be viewed with a skeptical eye if the technology is used for any assessment of job candidates' character or behavior, said Elaine Orler, CEO of the Talent Function, a talent acquisition consulting firm in San Diego. "The technology solutions aren't accurate in this area, and they leave too much to chance in terms of creating false positives or negatives," she explained. "To understand micro-expressions, for example, would require a deeper understanding of that one person's behaviors and not just a crowdsourced base line of everyone's expected expressions."
Some experts say facial recognition technology isn't without value in the workplace, especially in the age of COVID-19. Orler said using the technology as a biometric tool to grant access to parts of a building or as a touchless replacement for time clocks can be a good solution to reduce the spread of the coronavirus.
"Badges and other products that hold credentials often need to touch products that have been touched by others, and fingerprint scanners also have such dangers," she said.
Legal and Privacy Concerns
The use of facial recognition technology is now governed by laws in a growing number of states. Kwabena Appenteng, an attorney specializing in workplace privacy and information security with Littler in Chicago, said most employers are now aware of the landmark Illinois Biometric Information Privacy Act (BIPA) that requires companies implementing facial recognition technology in that state to obtain consent from subjects and to provide a written policy about how collected data will be stored, protected and used. Appenteng said more states—including California and Texas—also now require employers using the technology to satisfy certain compliance obligations.
Illinois and Maryland also have placed restrictions on facial analysis technology specifically for use in evaluating job candidates. California and New York have proposed similar legislation to regulate the use of artificial intelligence in assessing job applicants, said Monica Snyder, an attorney with Fisher Phillips in Boston and New York City and a member of the firm's data security and workplace privacy practice.
Illinois enacted its Artificial Intelligence Video Interview Act earlier this year, a law that requires companies using the technology to notify applicants in advance that the technology will be used to analyze their facial expressions, to obtain consent for its use, to explain to applicants how AI works and to destroy video interviews within 30 days if a candidate makes such a request, Snyder said.
"Employers need to tread carefully on how they use this technology," she said.
Appenteng said there's also the issue of getting employee buy-in for using facial recognition technology since many may consider it a risk to their privacy. "Employers may therefore want to consider providing their employees with a notice that explains facial recognition technology in easy-to-understand terms to placate any of those employee concerns," he said.
SOURCE: Zielinski, D. (09 June 2020) "Facial Analysis Technology in the Workplace Brings Risks" (Web Blog Post). Retrieved from https://www.shrm.org/resourcesandtools/hr-topics/technology/pages/facial-analysis-technology-workplace-brings-risks.aspx
How Hospitals Can Meet the Needs of Non-Covid Patients During the Pandemic
As there has been many waves of coronavirus cases for many months, health care has seemed to only point to helping those who have been impacted by the virus. Although there are still many cases that test positive for the virus, there has been a dramatic decline in other non-COVID related health issues. Read this blog post to learn more.
During the initial wave of the Covid-19 pandemic, hospitals worldwide diverted resources from routine inpatient critical care and outpatient clinics to meet the surge in demand. Because of the resulting resource constraints and fear of infection, clinicians and non-Covid patients deferred “non-urgent” visits, evaluations, diagnostics, surgeries and therapeutics. Indeed, early in the pandemic physicians and leading public health officials noted a dramatic decline in non-Covid-related health emergencies, including upwards of a 60% decrease in patients with acute myocardial infarctions and strokes.
Drawing on key principles from operations management and applying a health-systems perspective, we propose four strategies to facilitate care of non-Covid patients even as hospitals are stretched to absorb waves of patients with Covid-19.
1. Innovate outpatient management to reduce demand at downstream bottlenecks.
To reduce future bottlenecks in emergency departments (EDs) and hospitals, outpatient clinicians should expand their proactive management of patients at high risk of needing acute or inpatient services, such as those with poorly managed hypertension or diabetes, and triage patients with acute needs to EDs now in order to reduce more serious complications later. This will help reduce potential future spikes in demand on EDs and inpatient beds from non-Covid patients.
While most clinicians have rapidly adopted some form of telemedicine, they will need to increase their digital engagement with high-risk patients in a more targeted fashion. Clinicians should evaluate their patient panels to identify high-risk individuals and initiate telemedicine visits, rather than relying on patients to initiate contact, similar to the process for proactive disease management used by several community health care organizations.
Although high-risk patients will vary by specialty, targeted populations may include patients recently discharged from the hospital and those at high risk for hospitalization, including those with uncontrolled heart failure or active malignancy. To facilitate remote patient monitoring of high-risk patients, clinicians may opt to send telehealth kits tailored to patients’ medical and technological needs. These kits may include connected health devices such as blood pressure monitors, pulse oximeters, and heart rate monitors, and even mobile technology devices such as tablets or smart phones. To most effectively leverage telemedicine during the pandemic, clinicians must also promote multidisciplinary virtual collaboration across primary care clinicians, specialists, social workers, home health clinicians, administrative support, and patients and their caregivers.
2. Combine essential non-Covid inpatient services across hospitals.
To balance demand across hospitals, public health officials should apply a version of the logistics strategy known as “location pooling,” combining demands from multiple locations. Rather than each hospital in a region redundantly providing the full suite of essential inpatient non-Covid clinical services, each of these services should be concentrated at one location. For example, each region should have a single designated cancer center, transplant center, stroke center, and trauma center. Implementing this strategy is fraught with challenges as hospitals are currently organized independently and compete with one another for patients and revenue. Nevertheless, during the initial Covid-19 wave, several hospitals in Boston collaborated to share data on the availability of hospital beds to efficiently route patients based on their clinical need and the available capacity. And centralization of acute stroke care, in which patients are taken to central specialty hospitals rather than the nearest hospital, demonstrates both the feasibility and potential improved outcomes of utilizing this approach in several countries including the United States, Canada, the Netherlands, Denmark, and Australia.
Crises require all possible realizations of economies of scale. Location pooling mitigates variability in service-specific demand faced by each hospital. As demand falls for specific non-Covid services at an individual hospital (e.g., for acute stroke care), hospital administrators can close those services and repurpose the specialty capacity to care of Covid-19 patients with underlying conditions, as discussed below. If all hospitals implement this strategy, not all non-Covid services will be available at every hospital. However, location pooling draws demand from across hospitals, ensuring that as a given hospital loses some patients it gains others, allowing it to maintain sufficient census to remain fiscally viable.
Centrally coordinated regional organization, similar to mass casualty planning, is critical to ensure that each essential service remains fully operational for routine emergencies, while adapting to dynamic changes in the region’s hospital capacity. The number of hospitals to include in location pooling should be determined by weighing the tradeoff of efficiency gains from pooling across more locations versus inefficiencies from increased travel time incurred by patients and emergency medical services.
3. Group hospitalized Covid-19 patients by their underlying clinical conditions.
At the same time that hospitals should be location-pooling specialty services for non-Covid patients, to the extent possible they should place their Covid-19 patients who have serious underlying health issues (e.g., cardiac conditions) with other Covid-19 patients with the same condition. In each of these “cohorted wards,” redeployed clinical staff from the relevant specialty service, such as cardiology, can provide essential specialty care alongside clinicians addressing patients’ Covid-specific care needs.
While such cohorting limits efficiency gains from pooling all Covid-19 patients in one ward, it maintains specialty care for patients who still need it while reducing the additional inpatient capacity strain resulting from patients being dispersed across the hospital. Indeed, prior research demonstrates that displacing patients from cohorted specialty units is associated with prolonged hospital length of stay and more frequent readmissions.
4. Discharge patients into post-acute care based on Covid-19 status.
Nursing home, rehabilitation hospital, and long-term acute care facility leadership should collaborate to establish separate regional, specialized, post-acute care facilities for Covid-19 and non-Covid patients. Sending patients to specialized post-acute care facilities based on their Covid-19 status will facilitate discharge planning, improving patient flow out of the hospital for Covid-19 and non-Covid patients alike. This will relieve strain at ED and hospital bottlenecks while maintaining care quality. Furthermore, having dedicated post-acute care facilities for Covid-19 patients will preserve post-acute care capacity for those recovering from non-Covid illnesses, while lowering their risk of becoming infected.
Challenges to this model include ensuring timely access to Covid-19 testing and rapid test results to guide appropriate patient routing. To prevent discharge delays due to testing constraints, hospitals need to implement rapid tests more widely, and post-acute care facilities should designate quarantine areas for patients to receive care while awaiting results.
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These strategies will undoubtedly be challenging to implement. But now is the time to rethink health care delivery and adopt operations management strategies with demonstrated success that are most promising. This will allow us to be better prepared for future waves of the Covid-19 pandemic.
SOURCE; Song, H.; Ezaz, G.; Greysen, S. Ryan.; Halpern, S.; Kohn, R. (14 July 2020) "How Hospitals Can Meet the Needs of Non-Covid Patients During the Pandemic" (Web Blog Post). Retrieved from https://hbr.org/2020/07/how-hospitals-can-meet-the-needs-of-non-covid-patients-during-the-pandemic
Navigating the New Normal in International Business Travel
The coronavirus pandemic has placed many restrictions on travel for both leisure and business. As parts begin to open up and lift certain regulations, organizations are now looking at travel for the business, and if those are possibilities once again. Read this blog post to learn more.
What can your company expect in terms of your employees' ability to travel internationally as parts of the world begin to come out of months of lockdown?
And what will the ongoing restrictions and changes in everyday life mean for your company's ability to transfer or hire new foreign national talent in key areas? Only time will tell exactly what will happen, but we are beginning to see patterns and hints of what is to come.
Some countries that have managed to flatten the curve of COVID-19 infections are gradually easing restrictions on freedom of movement and commerce. This is typically being undertaken cautiously and in a multistep fashion. Other countries have been slower to ease travel restrictions. A broad travel ban remains in place in China, and countries in Latin America continue to extend travel limitations with a wary eye on the outbreak in Brazil.
International travel restrictions on freedom of movement are being eased, albeit more slowly than domestic restrictions. We expect that the easing of international travel restrictions will be incremental in nature as the easing of domestic restrictions has been. We also expect that quarantine requirements for arriving travelers are likely to be put into place in many locations, significantly hampering international business travel.
Arriving travelers are also likely to be questioned more closely than in the past regarding their recent travels, health, reasons for visiting and plans for satisfying quarantine requirements. Although the primary purpose of the vetting may be to limit the spread of COVID-19, an unintended consequence may be that the purpose of the visit and whether the traveler has the correct documentation is scrutinized more closely than in the past. If the traveler is attempting to enter to engage in productive or remunerated work—which often includes consulting, commissioning, installing, troubleshooting and, in some countries, even training or audit activities—without the proper work visa, they are likely to be identified and denied entry.
Governmental migration authorities around the world are beginning to either ramp back up where they were operating at limited capacity or to reopen where they were shut down completely. But although many facilities are ramping up and/or reopening, significant backlogs of applications exist. Many government offices and consulates are encouraging or requiring contactless submissions via post or even e-mail.
The New Normal: A Long-Term Perspective
Looking ahead, it is somewhat challenging to predict what will happen in the global immigration space given that we do not yet know how long the pandemic will drag on. The longer it continues, the more different our new global immigration normal is likely to be. What is already clear is that even if a vaccine or effective remedy for COVID-19 is developed, things are unlikely to go back to "normal" as we knew it before the pandemic. So, what will the new normal look like for your company?
Rise in Remote Work—Decrease in Global Mobility
Many companies have discovered the ability to conduct business remotely, including across borders. What used to require an international business trip (with the corresponding time, costs and visas) now takes place via conference call. Where you used to relocate key staff across borders to facilitate teams working together in person, you likely have now discovered that with everyone working remotely, it may not matter whether your newest team member is physically sitting in Canada, China or France.
New Challenges for Essential Travel
Despite the rise in remote work, technology can't replace all short- or long-term global movement of employees. Some work—installing or commissioning equipment, quality control on a production line, testing of systems and more—simply cannot be done via conference call. If your company has employees who must travel for business purposes, those employees will likely continue to encounter quarantine requirements until the pandemic has been resolved. This means your employees traveling for work will need to provide evidence that they will quarantine for 14 days following arrival, before attending their meetings and/or work duties.
In the past, citizens of privileged countries, such as the U.S., have often enjoyed a low level of scrutiny at ports of entry and have been able to avoid issues when traveling for work purposes without a visa. In fact, before the pandemic, your company's employees may have been previously accustomed to traveling to certain countries with just their passport and no visa. Under the new normal, we anticipate that all international travelers will be subjected to increased scrutiny on entry through the destination country's customs and immigration process. This means your employees are more likely to need to secure a visa in advance of any foreign travel. For this reason, it will be important for you to verify immigration requirements with the most recent information well in advance of your employee's planned travel date. After all, the last thing you want is for your employee to experience the unpleasant surprise of being denied entry or prevented from boarding a flight.
New Challenges for Long-Term Relocation and Local Hires
While it is true for some industries that it does not matter whether a new hire is sitting in Canada, China or France, for others, it absolutely matters. It is probably impossible for a manager to supervise a manufacturing facility via Zoom. Unfortunately, it is likely that companies seeking to transfer or hire foreign nationals will face increased hurdles, even beyond the immediate travel-related hurdles posed by COVID-19 travel restrictions. As unemployment numbers have soared, we have already seen a significant political backlash against immigrants in the U.S. Even putting aside any politically or economically motivated reduction of work visa numbers, the labor market reality of having millions of citizens out of work will make it extremely difficult to pursue work visas that require labor market testing. This would include Labour Market Impact Assessment work permits in Canada, Tier 2 General work visas in the U.K., and Subclass 482 work visas in Australia, among others.
Mitigating Negative Impacts: Preparation and Strategy
It is hard to imagine how any company, let alone a company with global operations and travel needs, could avoid the negative impact of the pandemic. Here are a few ways your company can mitigate (rather than eliminate) the negative impacts:
- Raise awareness. Your company and your employees are likely to face many obstacles that you are not accustomed to, whether it is a requirement that employees add 14 days to a business trip to accommodate a mandatory quarantine period, the need to obtain visas in advance of travel where they previously could travel without one, or delaying many months before starting a new position while waiting for a work visa approval. It is crucial that all key stakeholders within your company are made aware that immigration is not business as usual. Stakeholders include not only HR and legal personnel but also company managers and recruiters. To the extent that employees can book international travel without managerial approval, it may be prudent to disseminate policies and information to all employees regardless of level. Requirements for travel, transfer and new hires alike must be checked before business commitments and plans are made or contracts with clients are signed. We recommend providing both written and video training to ensure that managers and other employees outside of legal and HR who may not be familiar with immigration concepts have both an opportunity to ask questions and reference materials to refer to in the future.
- Conduct quarterly planning. In countries where international transfers or hiring of foreign nationals is not prevented by political and labor market challenges, it will be important for your company to plan well in advance for any transfer or new hire. It is likely that the process of obtaining the necessary work visa and/or permit will be slower for some time given the COVID-19-related backlogs. Even where the immigration process itself is not slower than usual, it may take significantly more time to procure the corporate and personal documents (such as birth certificates, marriage certificates and university diplomas) that often must be included in visa applications. It is also possible that there will be more requirements that must be satisfied to obtain the visa, such as medical exams and negative COVID-19 tests. Given this, we strongly recommend that your company plan as far in advance as possible. Although it is not always possible to anticipate all business needs, it is a best practice to work to identify upcoming assignments or new hires on a quarterly basis. We have seen that having a policy and schedule in place with the relevant managers and recruiters can go a long way to reducing last-minute immigration surprises. As part of this plan, before committing to a client contract or signing an employment contract, companies should confirm with their immigration counsel or another trusted source that the employee is able to qualify for the necessary visa and the timeline involved.
- Implement a global mobility management system. While we have always recommended that companies with global mobility needs have an organized way to track and manage the global movement of their employees, the pandemic has greatly increased the need for such a system. Many companies were caught off guard by the fast-moving pandemic and did not know where their employees were in the world, when their visas were expiring or how they were going to get them home again. Having a centralized system will certainly not solve all your problems, but it will at least equip your company with the information and tools needed to make informed decisions. A "system" does not necessarily mean the very latest and most expensive software for managing global mobility, but rather, some sort of functional, organized method by which to vet and track travel, international transfers and new foreign national hires, along with a clear company global mobility policy.
SOURCE: Lustgarten, A. (08 July 2020) "Navigating the New Normal in International Business Travel" (Web Blog Post). Retrieved from https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/navigating-new-normal-international-business-travel.aspx