Payroll Tax Holiday – To opt in or to opt out?

It’s only fitting for a year like 2020 to have an unorthodox holiday come early… the payroll tax holiday! May not sound very exciting but it’s an important one with some grey area that everyone should understand fully.

Here’s a quick back story: On August 8, 2020, President Trump issued a proposal to stop withholding the 6.2% employee share of the Social Security tax. It would be for pay periods from September 1 – December 31, 2020 and only applicable to those that earn less than $104,000 annual salary ($4,000 bi-weekly). The intent behind this was to be yet another relief effort for those affected by COVID-19 and professional changes that may have caused financial strain, especially the last quarter of the year.

Sound too good to be true? Although it’s a very generous plan to help put more money in employee’s pockets, it does have to be paid back. The payback period starts January 1, 2021 and runs through April 30, 2021. That bill would most likely be in the form of a higher deduction from those paychecks, resulting in less take-home pay for those 4 months.

It’s been advised by many HR professionals to NOT elect for this as an employer or an employee. And here is why… As an employer, it is unclear if you will get stuck with the payback bill if the employee is no longer with your company during that first quarter of 2021. And as an employee, you could be charged penalties and interest if you’re unable to pay it back on time.

The White House is currently stating that they will TRY to get the deferred taxes forgiven but there is no guarantee at this time. That doesn’t seem likely as it would require new legislation and support that isn’t there since it would under fund Social Security.

The good news is that this is optional for those that think it’s a good fit and not required for the majority that will choose to pass up the offer. The only mandatory employers, as of now, are federal workers in the US government.

As always, if you have questions relating to HR and compliance for things such as this payroll tax holiday, we are happy to help find the answer for you.

What if you were told your construction company could be fined up to $132,589?

As this year’s Construction Safety Week wraps up, let’s look at some pretty staggering statistics relating to jobsite and workplace safety, as well as some new-age solutions to these age-old problems.

• The average cost of a slip or trip injury causing time away from work: $46,000 {National Safety Council}
• It is estimated that the amount of near misses that go unreported is up to 85% {MakuSafe}
• The Top 2 OSHA citations were for lack of fall protection systems and insufficient information transmitted to employers and employees regarding toxic and hazardous substances {ThinkHR}
• OSHA penalties range from $13,260 (other-than-serious & serious) to $132,589 (repeat & willful) {ThinkHR}
• 20% of private-industry worker fatalities are in construction {Big Rentz}
• Construction sees non-fatal injury rates that are 71% higher than any other industry {Accident Analysis & Prevention}

So what can we learn from all of this and how can the construction industry do better to stay safe?

• Construction companies can save $4-6 in indirect costs for every $1 invested in direct costs by evading an injury in the workplace
• Creating and implementing training programs such as how to properly wear PPE, general awareness and classes provided by OSHA would reduce the amount of employee injury but also be wise financially… Construction site injuries typically account for 6–9% of project costs, while health and safety programs only account for 2.5% of project costs
• Utilizing safety and machine operating checklists as well as hazardous material communications will facilitate consistency and reduce liability exposure
• Maintaining a safe environment will help build a positive reputation, assist with brand awareness and recruiting, and promote team morale

How does technology play a part? There are newer systems and protocols that could help prevent and protect construction companies from safety issues. Things such as:

• Wearables (think arm holster or watch) that can monitor conditions, detect slips/trips/falls quickly, report near-misses without interruption, etc.
• Digital trainings available at any time to any size group
• Live stream cameras with recording for monitoring or later verification of procedures or events
• Telematics installed on heavy equipment that could include front and rear facing cameras and operational details of the equipment
• Systems to analyze safety inspection data in order to implement change

We can all agree that safety in construction is a problem and something to take seriously. It’s a risky environment with constant movement, equipment and people coming on and off the jobsite. Taking every step possible to mitigate injuries is worth every penny these precautions could cost. What steps do you have in place for your team?

Important updates on FFCRA and employee leave

With the Coronavirus being something new to most people as of this year, it is to be expected that the way we react to and handle it to be unfamiliar territory. Even just this week, the FFCRA (Families First Coronavirus Response Act) guidelines were challenged after some DOL (Department of Labor) changes. This stemmed from a court hearing in New York but could trickle out to the rest of the US as well. Here is some important information from our valued HR partner, Think HR:

FFCRA Leave – Significant Rule Changes

A federal court in New York recently struck down four federal DOL rules related to the leaves provided by the FFFCRA. As a result, certain aspects of the FFCRA are now more favorable to employees. Unfortunately, it’s not clear if the ruling applies nationwide or only in the Southern District of New York, where that court is located. Until there is further activity in the case—which may clarify whether the rules remain intact throughout the rest of the country—we recommend that employers err on the side of caution when administering FFCRA leaves and assume these particular rules no longer apply.

What is clear is that these four rules definitely do not apply to the counties of Bronx, Dutchess, New York, Orange, Putnam, Rockland, Sullivan, and Westchester (i.e., the Southern District of New York).

Here are the rules that the court invalidated:

1. The requirement that work be available for an employee to use leave
• DOL Rule: The DOL said that for an employee to use Emergency Paid Sick Leave (EPSL) or Emergency Family and Medical Leave (EFMLA, aka EFMLEA), the employer had to have work available for them during the time they needed leave. For instance, if an employee was furloughed while sick with COVID-19, they would not be eligible for EPSL.

• The Court’s Ruling: Availability of work is irrelevant. If an employee is still employed, whether on the schedule or not, they should be allowed to use FFCRA leave for qualifying reasons.

2. The requirement that employers agree to intermittent leave
• DOL Rule: Employees must get approval from their employer to use intermittent leave to care for their children when their school or place of care is unavailable because of COVID-19.

• The Court’s Ruling: If an employee needs intermittent leave (partial weeks or partial days off) to care for their child whose school or place of care is unavailable because of COVID-19, the employer must allow it.

3. The requirement that employees provide documentation before taking leave
• DOL Rule: Employers could require that employees provide certain documentation before being allowed to take FFCRA leave or before designating the leave as EPSL or EFMLA.

• The Court’s Ruling: Employers can still require documentation (which is necessary to get their tax credit), but they can’t prevent an employee from starting leave until the documentation is received. The law clearly states that an employee must provide notice “as is practicable” when taking EFMLA leave and after the first workday of leave when taking EPSL.

4. The definition of health care provider, for the purpose of exemption from leave
• DOL Rule: The DOL had defined health care providers broadly, to include anyone who works for a healthcare entity and many who contract with one. (The rule was so broad that a custodian working at a drugstore or an English professor at a university with a medical school could be exempt.)

• The Court’s Ruling: The definition is too broad. However, the court did not provide a new definition. We recommend that employers apply the exemption only to those employees capable of directly providing healthcare services.

As a partner of Think HR, we will pay close attention for activity in this particular case and will let employers know if and when things change or become clearer.

What does “furlough” mean anyway?

Furlough. It’s a rare term to hear in the workplace until something like a government shut down or pandemic such as Covid-19 happens. There’s a difference between a furlough and a layoff and it’s extremely important for both employers and employees to understand them fully.

A “furlough” is when the employment is maintained but hours are reduced or the employee is placed on unpaid leave. This would make sense if an employer wanted to keep the employee and thought a temporary hardship would be better than terminating them completely. With a furlough, the employee may still qualify for unemployment as well.

Exempt employees (those not eligible for overtime) have to be paid their normal weekly salary if they do any work at all so it is usually, in a situation like our current Covid-19 quarantine, employers would encourage employees to NOT work at all. Non-exempt employees can be paid for actual hours worked without any further pay implications.

Typically, the furloughed employee can keep their health insurance but will be responsible to pay their portion of the premiums throughout the furlough. Often times, companies will restore employment following a furlough and provide back the following:

• Retention of seniority
• Maintained benefits such as health insurance with no lapse in coverage
• The ability to use any PTO/vacation time/sick leave as accrued

A “layoff” is less promising as it’s usually permanent… but a temporary layoff could be an option if it’s just due to a short period of time where there is no work for that employee. A layoff does include actual termination of employment, whereas the above mentioned benefits would not apply.

In an ideal world, neither furloughs or layoffs would happen. However, as we’ve quickly learned, they can become reality and we all need to be prepared to make appropriate arrangements in the event something like this occurs.

Families First Coronavirus Response Act

On March 25, 2020 the Department of Labor (“DOL”) published a required notice under the Families First Coronavirus Response Act for employers with fewer than 500 employees. Those employers must post this notice by April 1, 2020. The notice is available here. This notice must be placed in a visible location within the premises and/or it can be emailed directly to each employee. 

The DOL has provided a few resources which are linked below:

Action Items for employers with fewer than 500 employees before April 1st, 2020:

  • Draft a handbook policy for Emergency FMLA and Emergency Paid Sick Leave (contact us for a sample)
  • Post and/or distribute DOL notice poster Update leave and FMLA policies to anticipate these new required policies

As you face the day to day questions of balancing business concerns, the law, and health and safety, we are here to help and assist in any way we can. Stay safe!