The Equal Employment Opportunity Commission’s (EEOC’s) EEO-1 Component 1 Online Filing System is set to open on Monday, April 26, 2021. Private employers with at least 100 employees, and federal contractors with at least 50 employees and a contract worth $50,000 or more, must file their EEO-1 data for years 2019 (previously postponed due to the COVID-19 pandemic) and 2020, by Monday, July 19, 2021. Employers will be required to first file for 2019, then file for 2020 – after the 2019 report is submitted and certified.
As a reminder, EEO-1 reports require data from a “workforce snapshot period,” which is any single pay period during the last quarter of the year (October through December), as selected by the employer. Employers may select different workforce snapshot pay periods for 2019 and 2020.
Employees who telework must also be included in the EEO-1 report for the establishment to which they report. Practical tip: Do not include home addresses for these remote employees as a company location.
The 2019 and 2020 reports will only include “Component 1” data, which is comprised of the same workforce demographic information that has long been required on the EEO-1. As of right now, the controversial “Component 2” pay data information does not need to be reported to the EEOC. Last year, the EEOC did not renew its authority to collect the pay data information and is still evaluating the Component 2 data that it received for FY 2017 and 2018 to determine whether or not the information is useful, and whether or not the data collection form needs to be revised.
It should also be noted that the U.S. Congress also could act on legislation pending in the form of the Paycheck Fairness Act, which would require the EEOC and the Office of Federal Contract Compliance Programs (OFCCP) to initiate pay data collection.
Bottom line: Employers should be prepared to begin submissions of their EEO-1 reports for 2019 and 2020 as soon as possible. Don’t stop there. Evaluate your EEO-1 data and strongly consider pay equity analysis, with the goal of identifying and correcting any potential issues, sooner rather than later.
Effective March 23, 2021, new Illinois law generally prohibits the use of criminal convictions in employment decisions and creates additional new hurdles for employers who decide to rely on any conviction for employment purposes-unless otherwise authorized by law. Join Jeff Risch and Allison Sues on Thursday, April 29 @ noon CT for a timely discussion surrounding the new law. During this webcast attendees will learn:
How to navigate new hiring mandates
What to include in the mandated written notices to a denied applicant or terminated employee because of a conviction record
How to reconcile the new IL law with existing local, state and federal mandates (i.e. FFCRA, Ban the Box, etc…)
How to analyze whether a specific conviction history has a substantial relationship to a certain job position or poses a unreasonable risk to property or safety
What does “unless otherwise authorized by law” really mean for employers
In response to the recent increased spread of Coronavirus in Ohio, Governor DeWine and the Ohio Department of Health have enacted several new Orders affecting all Ohio residents. Namely, in addition to existing protocols and guidelines for businesses, which remain in effect, the state has now instituted a 21-day curfew and restrictions for certain types of mass gatherings.
In order to help curb the spread of the coronavirus, the Ohio Department of Health has mandated a statewide curfew for all Ohio residents, from 10 PM to 5 AM daily, starting November 19, 2020 and lasting for 21 days. Notably, the curfew does not apply to those going to or from work, those who have an emergency, or those who need medical care. The curfew is not intended to stop anyone from getting groceries or going to a pharmacy. Picking up carry-out or a drive-thru meal and ordering for delivery are also permitted, but serving food and drink in person must cease at 10 PM.
Effective as of November 17, 2020, the Ohio Department of Health has instituted limitations on the following types of mass gatherings: wedding receptions, funeral repasts, and other events at banquet facilities. Those limitations are as follows:
No socializing or activities in open congregate areas and no dancing.
Guests must be seated at all times. However, traditional wedding reception events such as first dance, toasts, tossing the bouquet and cutting the cake are permitted.
If serving food and beverages, guests must be served at their seats. No self-serve buffets and no self-serve bar areas permitted.
Masks must be worn at all times unless actively consuming food or beverages.
No more than 10 people should be seated at a table and those individuals must be from the same household.
The order does not apply to religious observances; First Amendment protected speech, including petition or referendum circulators, and any activity by media; and to governmental meetings which include meetings that are required to be open to the public.
Existing COVID-19 Business Protocols and Guidance Remain in Effect
While the Ohio Department of Health has lifted many of the mandatory business requirements initially put into place in response to the COVID-19 pandemic, there are still several established workplace requirements. In general, all employers are required to:
Require all employees to wear face coverings unless they are prohibited by law or regulation; in violation of documented industry standards; not advisable for health reasons; in violation of the business’s documented safety policies; or there is a functional/practical reason not to wear one. They also are not required for employees who work alone in an assigned work area.
Practical reasons not to wear face coverings include, but are not limited to, high temperatures in facilities or employees separated by more than 6 feet on a manufacturing floor.
Comply with social distancing requirements of the U.S. Centers for Disease Control and Prevention and Ohio Department of Health, including, where possible:
Designating 6 foot distances with signage, tape, or other means to allow for adequate social distancing between employees; this also applies to customers in lines.
Having hand sanitizer and sanitizing products readily available for employees and any customers.
Establishing separate operating hours for elderly and other vulnerable populations.
Posting online whether a facility is open and how best to reach the facility and continue services by phone or in another remote manner.
Allow as many employees as possible to work from home by implementing policies in areas such as teleworking and video conferencing.
If employees do report to workplaces:
Actively encourage sick employees to stay home until they have recovered.
Guidelines from the Centers for Disease Control and Prevention for people with confirmed or suspected COVID-19 are as follows:
Employees with symptoms (including those who have tested positive and those who have not been tested) should stay home until:
At least 10 days have passed since symptoms first began; AND
At least 24 hours have passed since there has been no fever without use of fever-reducing medication; AND
There has been improvement in other symptoms.
If an employee is severely immunocompromised, a health care provider may determine that a longer time frame is recommended.
Employees without symptoms who have lab-confirmed COVID-19 should stay home until at least 10 days have passed since the date of the positive test. However, if the employee develops symptoms in that time period, then the employee should follow the criteria for people with symptoms.
Ensure that your sick leave policies are up to date, flexible, and non-punitive to allow sick employees to stay home to care for themselves, children, or other family members. Consider encouraging employees to do a self-assessment each day to check if they have any COVID-19 symptoms (fever, cough, or shortness of breath).
Separate employees who appear to have acute respiratory illness symptoms from other employees and send them home immediately. Restrict their access to the business until they have recovered.
Reinforce key messages — stay home when sick, use cough and sneeze etiquette, and practice hand hygiene — to all employees, and place posters in areas where they are most likely to be seen. Provide protection supplies such as soap and water, hand sanitizer, tissues, and no-touch disposal receptacles for use by employees.
Frequently perform enhanced environmental cleaning of commonly touched surfaces, such as workstations, counter tops, railings, door handles, and doorknobs. Use the cleaning agents that are usually used in these areas and follow the directions on the label. Provide disposable disinfectant wipes so that commonly used surfaces can be wiped down by employees before each use.
Be prepared to change business practices if needed to maintain critical operations (e.g., identify alternative suppliers, prioritize customers, or temporarily suspend some of your operations).
In addition to the general guidance, there are specific guidance for certain sectors, including offices, health care, assisted living facilities, and bars and restaurants, which are available on the Ohio Department of Health website.
Local communities and municipalities are permitted to enact guidance or requirements. For example, the City of Columbus and Franklin County issued a COVID-19 Health Advisory, which generally follows many of the state guidelines. Accordingly, Ohio employers should work with experienced labor and employment counsel to confirm that they are in compliance with all applicable state, city/local, county and federal requirements and guidelines.
The State of Missouri has continued to resist imposing significant state-wide orders to combat the spread of COVID-19. However, with positivity rates on the rise and pressure increasing on health providers throughout the state, some localities have recently enacted enhanced restrictions on businesses and social gatherings to combat the spread.
One such locality is St. Louis County, which enacted the following health orders, which went into effect on Tuesday, November 17, 2020:
Residents are required to stay at home, unless to travel to and from work and other limited specific purposes such as shopping for groceries, education purposes or obtaining medical care
Social gatherings are limited to no more than 10 persons
Aside for defined business exceptions such as hospitals, public transit and schools, all businesses providing goods and services are limited to 25% or less of its permitted occupancy; all employees are required to wear face coverings and comply with social distancing requirements
Restaurants are limited to providing outdoor service, carryout and delivery
All residents are required to regularly self-observe for COVID-19 symptoms and if, at any time, a person develops such symptoms, they are required to self-isolate, limit contact with others and seek medical advice and/or be tested for COVID-19
Residents who have been in close contact with COVID-19 positive individuals or who them themselves been exposed to COVID-19 is instructed to quarantine for a period of 15 days after the last exposure
Individuals in quarantine are permitted to walk outside, but are instructed to wear face coverings and not go within 6 feet of others
Residents who test positive and/or who have COVID-19 symptoms and who are awaiting results are instructed to isolate until cleared by the Department of Public Health for a period of 10 to 14 days, depending on individual factors
Individuals in quarantine are permitted to walk outside, but are instructed to wear face coverings and not go within 6 feet of others
While not as extensive, St. Louis City also issued an additional order this week, which went into effect on November 14, 2020. Specifically, it reaffirmed all prior orders already in effect in the city and further placed the following restrictions on private gatherings:
Private gatherings of more than 10 attendees are prohibited
The city recommends any gatherings with less than 10 attendees be limited to no more than 1-2 households, and that those households remain consistent throughout the gathering
The order further clarifies that it also applies to businesses, schools and government offices, all of which are still required to require face masks and to require social distancing and hygiene measures of employees and other individuals
As has been the case throughout the pandemic, these measures are always subject to modification based on conditions and potential legal challenges. That is especially true in Missouri where localities are enacting their own sometimes-inconsistent orders in the absence of state-wide measures. Accordingly, Missouri employers should consult with experienced labor and employment counsel to ensure that they are in compliance with all current state, city/local and county-wide orders.
Although Wisconsin has no statewide or industry-specific requirements, Governor Evers’ November 10, 2020 Executive Order “strongly encouraged” all businesses to take a number of precautions in response to the COVID-19 resurgence, including:
Hold meetings and collaborate online or by phone, even if staff are physically present at the worksite
Alternate work teams or stagger shifts
Require staff, customers, and the public to wear masks, and require social distancing of 6 feet between all individuals at the worksite
Prevent staff from entering the worksite if they display respiratory symptoms or have had contact with a person with a confirmed diagnosis of COVID-19
Increase standards of facility cleaning and disinfection of all areas, emphasizing “high-touch areas” including door handles, railings, restrooms, buttons, office equipment, tools, payment devices or cash registers, and counters
Post signage reminding staff and customers of safe business practices, social distancing requirements, hand hygiene, and cough/sneeze etiquette
Where possible, offer curbside pick-up and drop-off, and delivery of goods and services
Where possible, offer online or phone payments, appointments, and reservations
Local communities and municipalities are permitted to enact requirements and several Wisconsin municipalities have issued their own emergency orders, including Madison & Dane County, City of Milwaukee, Eau Claire City, and the City of Wausau. Accordingly, Wisconsin employers should consult with counsel to verify that they are in compliance with all current state, city/local and county-wide orders.
New COVID-19 cases are surging in Illinois, and Illinois is ramping up more restrictions by instituting additional measures throughout the state. Generally, these measures have the objective of limiting gatherings and encouraging people to stay at home, but do not rise to the level of a stay-at-home order. Illinois’ Phase 4 remains in place with the following new restrictions:
Manufacturing (Implementation of safety guidelines):
Additional COVID-19 training for all employees (even if previous training occurred)
Employers to coordinate with IDPH to implement testing protocols and contact tracing
Face coverings at all times, except for safety purposes
Only manufacturing staff and key personnel allowed in facilities
Non-production employees must work remotely
Non-essential staff and visitors are not permitted
Exemptions only for critical equipment repairs, supply deliveries and safety reasons (“critical visitors”)
All critical visitors must have an Employee Health and Safety (EHS)-approved risk-assessment done in advance, including travel history, tracking, and temperature check prior to entrance
Implement additional workstation realignment when feasible
Stagger and space shifts and entrances
Station sanitation required at beginning and ending of shifts
Suspension of COVID-19 incentive pay (promote staying home when sick or showing symptoms)
Implement temporary leave policies to accommodate sick workers
Develop and implement safety protocols for employee travel vans to promote spacing, require face coverings, temperature checks, air circulation, and vehicle sanitization
Bars/Restaurants (including private and country clubs)
Closed between 11 PM and 6 AM
Outdoor service only
Patrons, limited to groups of 6, should be seated at tables (6 feet apart)
No multiple parties at tables
Reservation required (no standing/congregating while waiting)
No service at bar
Indoor gaming terminals must suspend operations
All employees who can work remotely should do so
Operation at 25% capacity for general merchandise stores, “big box” stores that offer groceries and pharmacy, and convenience stores
Operation at 50% for grocery stores and pharmacies may operate at up to 50% capacity
Curbside delivery and pickup options wherever possible
When in-store shopping is necessary, promote efficient trips and consistent circulation
Occupancy limited to registered guests only
Fitness centers should be closed, or operated only on a reservation model, with capacity limited to 25% of the maximum occupancy for the room
Grab and go food allowed
Event and meeting space closed
Personal Care Services
Operate at lesser of 25 clients or 25% capacity
Face coverings required (suspension of facials, beard trims and other face services)
Physical, occupational and massage therapy allowed as deemed necessary by a medical provider:
Appointments must be spaced by a minimum of 15 minutes and facilities should take steps to sanitize and circulate clean air through service rooms before and after each service
Virtual consultations recommended
25% capacity or less
No indoor group classes
Face coverings must be worn at all times, including while engaged in individual exercise regardless of person or machine spacing
Locker room areas to be closed
Meetings and Gatherings
Limit home gatherings to household members
No gatherings at meeting rooms, banquet centers, private party rooms, private clubs and country clubs
No party buses
Funerals are limited to 10 family members of the decedents, not including staff
Recreational and Sporting Activities (includes park districts and travel leagues)
Pause all indoor group sporting and recreational activities (youth and adult recreational sports)
Individual training may remain (with facility reservation)
Outdoor sports and recreation allowed, but limited to 10 persons or less with social distancing (no locker rooms)
Face coverings required for all activities at all times
Gaming, Theaters, Museums, and Indoor Amusement
Gaming and casinos closed
Indoor recreation centers, including theaters, performing arts centers and indoor museums and amusement centers closed
Live streaming of performances encouraged (social distancing of performers and minimum operational staff)
Outdoor activities (reservations required) allowed at 25% capacity or less
Outdoor group activities limited to 10 persons or less (participants must wear face coverings at all times)
Previously exempt functions (i.e. infrastructure, governments, logistics and warehousing etc.) may continue regular operations, but Illinois is encouraging voluntarily and proactive application of mitigation steps whenever possible.
As with all matters involving COVID-19, these mitigation measures are fluid and subject to change. We will continue to monitor and update as needed. For continued information regarding COVID-19 restrictions, visit SmithAmundsen’s COVID-19 Resource Center or contact a member of our task force here: https://www.salawus.com/practices-covid19-task-force.html
Indiana Governor Eric Holcomb announced new coronavirus restrictions on November 13 that took effect on November 15, 2020 and continue through December 12, 2020. All businesses are allowed to be open subject to the restrictions in Executive Order 20-48. Executive Order 20-48 implements a county by county assessment that determines various measures, including crowd sizes, depending on the level of COVID-19 in that county (e.g. 25 people in red counties and 50 people in orange counties, with larger events needing approval from health officials). Businesses in higher risk counties are encouraged to take measures to ensure social distancing and protect their workforce.
Hoosiers who test positive for COVID-19 are required to quarantine.
Social distancing is required except with members of your own household.
Face shields are encouraged for individuals with such health/physical conditions.
Face coverings are required for individuals over two years of age who do not have a health or other condition that makes wearing a mask an undue risk.
Face coverings are required in indoor public spaces, outdoor spaces where social distancing is not possible, while using public transit, and in all schools.
NOTE: The requirement does not apply while eating or being seated at a restaurant to eat, while exercising and maintaining social distancing, or attending a church service.
All customers in restaurants and bars are required to be seated, and tables, counters, or other seating arrangements must be spaced six feet apart.
Hospitals are encouraged to reprioritize or postpone non-emergent procedures.
For most counties (orange), attendance at indoor school events is limited to 25% capacity.
Recreational sporting leagues are limited to participants and required personnel.
Communities are permitted to enact more stringent restrictions. Indianapolis continues to do so. For continued information regarding COVID-19 restrictions, visit SmithAmundsen’s COVID-19 Resource Center or contact a member of our task force here: https://www.salawus.com/practices-covid19-task-force.html
It’s that time of year and even a pandemic will not stop Illinois, Cook County and the City of Chicago from increasing their minimum wages on July 1, 2020 as follows:
Tipped Employees (Claiming the Tip Credit)
Illinois (all employers)
$10.00 per hour
$6.00 per hour
Cook County (employers in municipalities that did not opt-out)
$13.00 per hour
$6.00 per hour*
*Technically, the Cook County Minimum Wage Ordinance for tipped employees only increases to $5.30. However, since that is less than the new State minimum wage for tipped employees of $6.00, following the Cook County Minimum Wage Ordinance for tipped employees would be a violation of the Illinois Minimum Wage Law.
The July 1 change for the City of Chicago includes significant changes and new nuances that employers must be aware of, including different wage rates based on number and age of employees.
Large Employers (21 or more employees)
Small Employers (4 to 21 Employees; and Employers with 0 to 21 Domestic Workers)
Youth Workers (Under 18, subsidized temporary youth employment program or transitional employment program)
$14.00 per hour
$13.50 per hour
$10.00 per hour (same as State Min Wage)
Tipped Workers (Claiming the Tip Credit):
$8.40 per hour
O’Hare and Midway Airport Certified Service Providers: $14.15 for non-tipped employees and $7.65 for tipped employees.
WARNING MAJOR CHANGES
However, the biggest change that employers must take note of does NOT pertain to the wage rate, but WHO will be subject to the City of Chicago’s Minimum Wage and Paid Sick Leave Ordinances. The Amendment to the Chicago Minimum Wage and Paid Sick Leave ordinance passed on November 11, 2019, redefines and expands what employers are covered. Currently, only employers who (1) maintain a business facility within the geographic boundaries of the city and/or (2) are subject to one or more of the City’s license requirements in Title 4 of the Chicago Code are subject to Chicago’s minimum wage and paid sick leave ordinances.
Chicago Minimum Wage
The City’s revisions that go into effect July 1 delete the requirement that an employer must have a business facility within the geographic boundaries of the City and/or be subject to the City’s license requirements to be covered. After July 1, the new definition for employer in the Chicago Minimum Wage and Paid Sick Leave ordinances will be “a person who gainfully employees at least one employee.”
Under this change, it can be interpreted that any employer who has an employee who performs at least two (2) hours of work within the geographic boundaries of the City, during any particular two-week period, must pay that employee the Chicago minimum wage for the time spent working within the City of Chicago.
Chicago Paid Sick Leave
Furthermore, the Chicago Paid Sick Leave ordinance uses the SAME definition for “Employer” as the Chicago Minimum Wage ordinance. This means that ANY employer who has ANY employee perform at least two (2) hours of work within the geographic boundaries of the City, during any particular two-week period, must document and record the amount of paid sick leave accrued by that employee for the time spent working in the City!
As an example of the potentially drastic nature of this change is this scenario: a Texas business sends its non-exempt employee to New York. The employee’s flight has a 2 ½ hour layover at O’Hare (O’Hare and Midway are both within the geographic boundaries of the City of Chicago). Technically under Chicago’s Paid Sick leave ordinance, the Texas business would have to record the amount of paid sick leave that the employee accrued during the 2 ½ hours that the employee was “working” in Chicago.
Any employer who has employees going into the City of Chicago, now MUST review and understand their obligations and whether they are subject to the Chicago Minimum Wage and Paid Sick leave ordinances after July 1.
For employers that are subject to the Cook County or Chicago minimum wage and paid sick leave ordinances, you will need to get the most up-to-date required poster, which can be found on the City of Chicago webpages for Minimum Wage and Paid Sick Leave in English or Spanish. Additionally, under Chicago’s new rules, employers will have to provide written notice each year with the first paycheck after July 1, whether by paper or electronic means.
Employers that are unsure whether they must comply, what they must do to comply or that fail to implement compliant policies, including tracking sick leave accrual or carryover, should discuss options with employment counsel to mitigate exposure and minimize risk.
On June 5, 2020, President Trump signed the Paycheck Protection Program Flexibility Act. Notable changes will allow businesses more time to spend loan proceeds on permitted costs. This is significant relief for those businesses that were unable to continue operations and bring employees back to work. With many of those employees being lower paid, paying them to stay at home was not well received as it interfered with the higher amounts of unemployment compensation they could otherwise receive.
The significant changes allowed by the PPP Flexibility Act are:
The period during which borrowers have to account for payroll and non-payroll expenses has been expanded from 8 weeks to 24 weeks.
Borrowers are only required to spend 60% on payroll costs and can spend 40% on non-payroll costs. This is revised from the previous ratio of 75/25. (Note that the definition of payroll and non-payroll costs remains unchanged). This means a borrower has 16 weeks longer than originally legislated to cover rent and other permitted non-payroll costs.
Certain scenarios can provide for a borrower to be excused entirely from the FTE calculation. This means an employer that is unable to maintain the same employee levels during the 24-week period may not need to have the forgiveness of a loan prorated based upon a reduction in their average FTEs.
Repayment terms are modified. Notably, the first payment will not be required to be made within 6 months of loan origination. Instead, a borrower has 10 months from either the date the covered period ends or from 12/31/20 (whichever is later) to apply for forgiveness. Initial payment is not due until forgiveness is determined.
The previous “cure” deadline of 6/30/20 where borrowers could rehire employees and/or reinstate salary levels has been extended to 12/31/20.
PPP borrowers are permitted to utilize the provision of the CARES Act that permits delay of payment of payroll taxes.