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By Jeff Nowak on September 14, 2020

On September 11, 2020, the U.S. Department of Labor (DOL) issued revised regulations under the Families First Coronavirus Response Act (FFCRA) following a federal court’s decision that invalidated a handful of regulatory provisions interpreting the FFCRA.  Although the DOL was widely expected to address the court decision through revised regulations and/or court action, these new regulations throw additional curveballs for employers already struggling to comply with extensive COVID-19-related legislation.

Over the weekend, five Littler colleagues and I (including Bill Allen, Alexis Knapp, Lauren Marcus, Emilie Hammerstein, Mike Lotito) discussed, debated, even delighted in these new regulations.  [No, we didn’t delight. The DOL dropped these new regs at 6:15pm ET Friday night. Yeah, I might love the FMLA, but not on a Friday night at 6:15pm. No thank you, DOL.]

Yesterday, we published a comprehensive alert for employers on these DOL’s new regulations. If clicking through is too much work, here are the details of our post below.

Decision Invalidating Parts of Rule and DOL’s Response

As background, on August 3, 2020, a federal court in New York struck down four parts of the FFCRA’s final rule: (1) the requirement that leave under the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA) are available only if an employer has work available for the employee from which leave can be taken (“the work availability requirement”); (2) the requirement that an employee must have employer consent to take FFCRA leave intermittently; (3) the definition of an employee who is a “health care provider,” who an employer may exclude from use of FFCRA leave; and (4) the requirement that employees must provide their employers with certain notice and documentation before taking FFCRA leave (rather than after the leave begins).

In response, the DOL has issued revised regulations in which it clarified and doubled down on some of its original positions, while making some regulatory changes in line with the court’s ruling.  Dare I say, the DOL even got a little saucy with the New York court at times in defending its positions on various rules.  [Love that spunk, DOL!]

In its revised regulations, set to be published and take effect on September 16, 2020, the DOL:

• Reaffirms that EPSLA and EFMLEA leave may be taken only if the employer has work available from which an employee can take leave, and provides its reasoning why this precondition is critical;

• Confirms that intermittent leave under FFCRA can only be taken with employer approval;

• Provides an amended definition of “health care provider” that is narrower than its original regulations to cover employees who are health care providers under the classic Family and Medical Leave Act (FMLA) definition, as well as other employees who are employed to provide diagnostic, preventive, or treatment services, or other services that are integrated with and necessary to the provision of patient care; and

• Clarifies the timeline for when an employee must provide notice of the need for leave and supporting documentation.

The DOL Stands Firm on the Work Availability Requirement

Under the DOL’s original rule, one of the requirements for taking FFCRA leave (under both the EPSLA and EFMLEA) is that the employer must actually have work available for the employee to perform when the need for FFCRA leave occurs.  If the employee is not scheduled to work—whether due to a furlough, business closure or otherwise—there is no work from which to take leave.

In vacating this rule, the court found that the DOL’s “barebones explanation” for the work availability requirement was deficient in that it did not provide sufficient analysis as to the reason why work must be available for leave to be available. The court’s decision to strike down the work availability requirement stood in contrast to long-standing FMLA regulations, which make clear that periods of time when an employee would not otherwise be expected to work do not count against an employee’s FMLA leave entitlement.

In its new final rule, the DOL held firm that an employer must have work available for an employee in order for the employee to be eligible for FFCRA leave.  In other words, the employee’s FFCRA reason for leave must be the sole (“but-for”) reason they are not working.  In doing so, the DOL made clear:

. . . if there is no work for an individual to perform due to circumstances other than a qualifying reason for leave—perhaps the employer closed the worksite (temporarily or permanently)—that qualifying reason could not be a but-for cause of the employee’s inability to work. Instead, the individual would have no work from which to take leave. The Department thus reaffirms that an employee may take paid sick leave or expanded family and medical leave only to the extent that any qualifying reason is a but-for cause of his or her inability to work.

In its analysis, the DOL observed, “leave is most simply and clearly understood as an authorized absence from work; if an employee is not expected or required to work, he or she is not taking leave.”  The DOL also revisited one of the FFCRA’s core purposes of discouraging employees who might be likely to spread the virus from reporting to work, and pointed out that work must be available for that purpose to be effectuated.

Notably, the Agency cautioned that removing the work availability requirement would lead to “perverse” results.  Take, for instance, an employer that closes its doors or limits business hours and furloughs employees, none of whom would receive pay for being off work. Under the court’s reading, a furloughed employee with a qualifying reason for FFCRA leave could take EPSLA or EFMLEA leave, even when the business is otherwise closed or lacks available work. As the DOL noted, this employee would be paid during this period of leave, while their co-workers who do not have a qualifying reason for FFCRA leave would not be paid. As such, the DOL stood firm in its position on the work availability requirement, and reinforced that employees on furlough or temporary layoff status are more appropriately directed to contact their unemployment agency, rather than seek paid leave from their employer.

The DOL underscored, however, that employers may not arbitrarily withhold work in order to thwart an employee’s ability to take leave and emphasized that the unavailability of work must be due to legitimate, nondiscriminatory, non-retaliatory business reasons.

Definition of “Health Care Provider”

The FFCRA permits employers to exclude “health care providers” from some or all forms of EPSLA or EFMLEA leave.  In its original rule, the DOL provided an expansive definition of “health care provider” for FFCRA purposes that focused on the types of employers that could exercise the exemption.  In striking down the DOL’s broad, original definition, the court noted that any definition of “health care provider” must require “at least a minimally role-specific determination” of who is capable of providing healthcare services, depending upon the “skills, roles, duties, or capabilities” of the employees, and may not “hinge[] entirely on the identity of the employer.”  In other words, the court held that a health care employer would need to undertake a position-specific analysis of whether someone met the definition of health care provider before deciding whether leave was permitted, and that the definition of “health care provider” should also be much narrower (which would, in theory, permit more employees to take FFCRA).  When it invalidated the DOL’s original definition, the court referred only to the very narrow definition of “health care provider” under classic FMLA, leaving a regulatory gap for the DOL to again try to fill.

In response, the DOL crafted a definition that focuses on employees whose duties or capabilities are directly related to the provision of health care services or are so integrated to provision of such services so as to adversely impact patient care if not provided.  Accordingly, the new regulations remain far broader in scope than the classic FMLA definition of health care provider, while eliminating those employees whose services are not related or integral to provision of health care services.

More specifically, for purposes of that exemption, the DOL revised the regulatory definition of “health care provider” to include only employees who: (1) meet the definition of that term under the existing FMLA regulations; or (2) are “employed to provide diagnostic services, preventive services, treatment services or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care.”

Existing FMLA Regulations

The existing FMLA regulations define “health care provider” to include doctors of medicine and osteopathy and “others capable of providing health care services.”  The definition also includes podiatrists, dentists, clinical psychologists, optometrists, chiropractors, nurse practitioners, nurse-midwives, clinical social workers, physician assistants, and certain Christian Science practitioners.  Somewhat circularly, the existing FMLA regulations also recognize health care providers from whom an employer or employer’s group health plan’s benefits manager will accept certification of a serious health condition for purposes of substantiating a claim for benefits.

Newly Revised FFCRA Regulations

To fill the gap left by the court, the DOL asserts that the scope of health care services for purposes of the FFCRA must take into account the context of a pandemic and encompass a broader range of services than in the limited, classic FMLA context of diagnosing serious health conditions and filling out medical certifications.  The DOL underscored that a broader definition of “health care provider” for purposes of the exemption is justified because “those employees’ services are important to combating the COVID-19 public health emergency and are essential to the continuity of operations of our health care system in general” and thus, their absences from work would be “particularly disruptive.” Consequently, the DOL drew upon the definition of “health care service” in the Pandemic Hazards Preparedness and Advancing Innovation Act of 2019 to identify relevant health care services.  The revised FFCRA regulations clarify the various types of services that constitute health care services as follows:

Diagnostic: Includes taking or processing samples, performing or assisting in the performance of x-rays or other diagnostic tests or procedures, and interpreting test or procedure results.

Preventive: Includes screenings, check-ups, and counseling to prevent illnesses, disease, or other health problems.

Treatment: Includes performing surgery or other invasive or physical interventions, prescribing medication, providing or administering prescribed medication, physical therapy, and providing or assisting in breathing treatments.

Integrated: Those services that are “integrated with and necessary to diagnostic, preventive, or treatment services and, if not provided, would adversely impact patient care, including bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures, and transporting patients and samples.”

Consistent with the focus on employees rather than employers, the revised FFCRA regulations specifically identify the following types of employees who may continue to be excluded from taking FFCRA paid leave:

1. nurses, nurse assistants, medical technicians and others directly providing diagnostic, preventive, treatment or other integrated services;

1. employees providing such services “under the supervision, order, or direction of, or providing direct assistance to” a health care provider; and

1. employees who are “otherwise integrated into and necessary to the provision of health care services,” such as laboratory technicians who process test results necessary to diagnoses and treatment.

The revised regulations then specifically exclude those who do not actually provide such health care services, even if their services could affect the provision of health care services, “such as IT professionals, building maintenance staff, human resources personnel, cooks, food services works, records managers, consultants, and billers.”

The DOL provided an “illustrative list” of “typical work locations” where employees providing health care services may work, including the following:  “a doctor’s office, hospital, health care center, clinic, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar permanent or temporary institution, facility, location, or site where medical services are provided.”  The specifically identified locations match the list in the original FFCRA regulations, while the “catch-all” is similar to the original regulations but eliminates “similar institution, Employer, or entity” as a modifier to the locations.  Of course, an employee need not work at one of these enumerated facilities to be a health care provider for FFCRA purposes, and working at one of these facilities does not necessarily mean an employee is a health care provider.

Intermittent Leave Still Requires Employer Consent—But “Intermittent” May be Defined Differently than Employers Previously Thought

In striking down the DOL’s rule on intermittent FFCRA leave, the court questioned the DOL’s blanket requirement that an employee have employer consent to take intermittent FFCRA leave, finding that the DOL had not explained its rationale for such consent.  Sticking to its original position, the DOL stood firm in these new regulations on its position that intermittent FFCRA leave is available only when the employer consents, but offered an extensive rationale for its position.

In contrast to the FMLA, the FFCRA itself does not address intermittent leave, giving the DOL broad regulatory authority to fill this statutory gap.  In revisiting its original regulations, the DOL noted that the classic FMLA regulations generally provide for intermittent leave only for certain qualifying reasons (e.g., where intermittent leave is medically necessary), or where the employee and employer agree to an intermittent leave arrangement (such as for bonding leave following the birth or placement of a child).  The DOL further harkened back to the classic FMLA regulations, which require that, when the need for leave is foreseeable, it must be scheduled in a way that is minimally disruptive to business operations—leading the DOL to reinforce the requirement of employer consent for FFCRA leave.

In the case of leave to care for a child whose school or place of care is closed, medical necessity is not an applicable framework.  Thus, the DOL noted that FFCRA leave obligations should “balance the employee’s need for leave with the employer’s interest in avoiding disruptions by requiring agreement by the employer for the employee to take intermittent leave.” Leave in this instance, according to the DOL, is akin to an employee taking intermittent leave to bond with a child after childbirth or placement into adoption or foster care. Consequently, intermittent FFCRA leave can only be taken with the consent of the employer.

Notably, however, the DOL’s use of the term “intermittent” seems to have taken on some new substance.  More specifically, the preamble to the DOL’s new regulations address administration of FFCRA leave when an employee’s child participates in hybrid learning in which schools operate on adjusted or alternating schedules.  Here, each day of school closure “constitutes a separate reason for FFCRA leave that ends when the school opens the next day.”  As a result, intermittent leave is not necessary on these occasions because the “school literally closes . . . and opens repeatedly.”

Easing Documentation and Notice Requirements in Certain Instances

In its decision, the NY court invalidated the final rule to the extent it required the employee to provide documentation prior to taking FFCRA leave, as it rendered some of the statutory provisions unworkable.

Taking note of the court’s admonition, the DOL tweaked the existing regulations to clarify that any documentation required under Section 826.100 need not be provided before leave begins, but rather may be given “as soon as practicable, which in most cases will be when the employee provides notice” of the need for FFCRA leave.

Further, in situations where an employee seeks EFMLEA leave to care for a child whose school or place of care is closed, the DOL confirmed that the employee must provide the employer with notice of leave as soon as practicable under the circumstances.  If EFMLEA leave is foreseeable, such as in instances where the employee learns in advance that school will be closed, the DOL anticipates that the employee generally will provide notice before taking leave.

New FAQs

In conjunction with issuing revised regulations, the DOL updated and added to its FAQs to reflect the new guidance in the following ways (as of the publication of this article):

• The updated FAQs note an employee must provide their employer with the required documentation and information “as soon as practicable.”

• The FAQs regarding intermittent leave under both EPSLA and EFMLEA are updated to provide that an employee whose child’s school or place of care is closed, may still only take leave under the FFCRA intermittently if the employee and the employer agree.  The example given is that if you have another family member watch your child on Tuesday and Thursday, but cannot work on Monday, Wednesday and Friday, you would need employer approval to use the leave intermittently.  However, in line with the amendment discussed above, the FAQ notes that if an employee’s child’s school or place of care is closed on alternating days, leave may be used intermittently even without employer permission, because it is really being used in single, full-day increments and is not, in fact, “intermittent.”

• The DOL also amended the FAQ providing “who is a ‘health care provider’” to track the updated definition.

• The DOL added FAQs # 101-103 specifically addressing the effect of the NY court decision and the new regulations.

Insights for Employers

There certainly is some good news for employers here, as the DOL provides a common-sense application of the work availability rule that enjoys a much stronger chance of surviving legal challenge in the future.  The new rule also carefully balances an employer’s operational needs when an employee requests intermittent leave.  Employers also should be mindful of the DOL’s changes on the timing of notice of the need for FFCRA leave and the timing of documentation requirements.

In the meantime, the DOL’s regulatory changes have immediate impact on health care employers, particularly those that have exempted some or all of their employees from FFCRA leave as a result of the DOL’s initial sweeping rule regarding health care providers.  We encourage these employers to seek counsel on the scope of employees now exempt from FFCRA leave.  In addition, to the extent employers have questions about whether they should take any actions to mitigate risk from having followed the prior regulations on any of these issues, they should also consult with their favorite employment counsel to discuss strategy and approach.

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Source: FMLA Insights - Guidance & Solutions for Employers

https://www.fmlainsights.com/dol-revises-ffcra-regulations-to-clarify-paid-leave-rules-in-wake-of-new-york-federal-courts-decision/

BY JIM FICKESS, WORLDATWORK | AUGUST 11, 2020

Total United States salary budget increases fell for the first time in a dozen years, according to WorldatWork’s “2020-21 Salary Budget Survey.”

Respondents, who took the survey during the COVID-19 economic fallout, said the average salary budget hike will be 2.9%, a pronounced departure from the projected increase of 3.3%.

Contributing to the decline in average salary increase budgets is the significant increase in the percentage of organizations indicating a 0% salary budget increase for 2020 – nearly 10 times higher than 2019. Meanwhile, respondents typically budgeting in the 3% to 4% mean range declined by 7 to 10 percentage points, depending on industry sector.

Yet, 84% of organizations expect to pay some form of salary increases in 2020.

The last time the survey saw a decline in salary budget increases was during the Great Recession of 2008-09. An updated survey will be fielded in October to offer further insights into salary budget strategies during the pandemic.

“As the economy recovered following the financial collapse in 2008, we first saw a gradual rise in salary increase budgets, then a leveling off. But over the past two years with low unemployment rates and increased competition for talent, we saw a bigger jump in salary increase budgets,” said Sue Holloway, Director, WorldatWork. “Now, the sudden jolt of the pandemic has driven a higher percentage of organizations indicating a zero salary increase budget for 2020. More than 70% of companies are still giving increases in the 3% to 4% range.”

The 47th annual survey, the longest running of its kind, provides CEOs, Chief Financial Officers and HR professionals with comprehensive, year-over-year data to design competitive compensation plans and total rewards strategies that attract and retain high-performing employees. The data covers nearly 14 million employees from 19 countries.

A total of 4,754 organizations responded to the survey while addressing unprecedented business challenges, down less than 10% from 2019.

Among the highlights of the survey:

• Industry: While most industry shifts in salary increase budgets are downward, public administration and accommodation and food services were least affected this year, showing no change from 2019. Although stable this year, public administration is projected to have one of the largest falls in 2021. At 1.5%, educational services saw the lowest salary increase budgets.
• Merit pay: Average merit increase budgets for 2020 were reported at 2.6%, a 0.3% drop from 2019.
• Performance-based pay: Even though the size of all salary increase budgets, including merit budgets, declined in 2020, organizations continue to differentiate base pay-related awards. Average performance-based pay increases for 2020 are expected to fall to 2.5% for middle performers and 3.6% for high performers.
• Pay-equity adjustments: 65% of responding organizations expect to make pay adjustments in 2020 to remediate pay equity issues, and about the same number are anticipating pay equity adjustments in 2021.
• Metro areas: Denver and Seattle saw the largest average salary increase budgets in 2020.
• Around the globe: India saw the largest swing in salary increase budgets, dropping from 9.9% in 2019 to 8.4% in 2020. However, India’s 8.4% reflects the largest salary increase budget in the world.

2021 salary budget increases will likely mirror 2020, respondents predicted. But those projections could change with the October updated survey,

“We recognize the impact of the pandemic will lag,” Holloway said. “The October results of the updated survey will give a better indication of the future state of salary budgets.”

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Source: WorldatWork

https://worldatwork.org/workspan/articles/salary-increase-budgets-fall-for-first-time-in-12-years 

AUTHOR Samantha Liss | PUBLISHED Sept. 11, 2020

Dive Brief:

• A fourth of adults with employer-sponsored plans are underinsured, according to Commonwealth Fund's latest biennial report assessing the health insurance landscape. Underinsurance is a potential signal that some adults may be unable to pay their medical bills, posing possible problems for providers and hospitals who prize patients with commercial coverage.
• Nearly half (43.4%) of working-age adults in the U.S. were inadequately insured in the first half of 2020, on par with figures from Commonwealth's previous report from 2018. Those adults were either uninsured for a period of time during the past year, experienced a coverage gap or had high out-of-pocket costs or deductibles relative to their income.
• The share of privately insured adults with deductibles over $1,000 has more than doubled since 2010 and has outpaced income, putting a strain on workers, Commonwealth found.

Dive Insight:

The current public health crisis only threatens to exacerbate the growth in un- and underinsurance, as the economy is burdened by the novel coronavirus and its effects.

"Coverage insecurity will leave people with mounting medical debt, as well as significant financial barriers to getting the health care they need to survive the pandemic and lead healthy and productive lives," according to the report, which is based on a survey of more than 4,000 adults between the ages of 19 and 64. 

People without adequate coverage often delay care and filling medications, according to the study. That poses additional problems for the healthcare system as delayed care can lead to deteriorating (and likely more expensive) health conditions.

Initially, it was feared that as millions of Americans lost their jobs they too would lose their connection to employer-sponsored coverage. The Kaiser Family Foundation estimated in May that as many as 27 million Americans lost coverage as a result of job losses that were spurred by the pandemic. However, an August Urban Institute report found coverage losses may not have been as drastic as initially feared, despite the record number of lost jobs. 

Yet even with coverage, affordability remains a key problem.

The Commonwealth report found one-third of adults reported having a cost-related problem in getting needed healthcare. Unsurprisingly, the highest rates were among those who spent some time uninsured in the past year. But perhaps most concerning was cost-related problems among those with adequate insurance and without any interruptions in coverage throughout the year — most among those with employer plans.

Another pressing issue is the level of high uninsurance among people of color, young adults, workers at small businesses and people with low-incomes.

The authors outline several policies that could help consumers gain comprehensive coverage, including expanding Medicaid in the 12 states that have yet to open the program up to working adults without children and with incomes within 138% of the federal poverty level. Other policies options include enhanced subsidies for marketplace coverage and banning plans not compliant with the Affordable Care Act, plans the Trump administration has expanded under the president's term.

Researchers warned consumers are likely to face dire consequences without some policy action, noting "ongoing policy inaction on insurance coverage combined with the raging pandemic is certain to tip the nation's health care affordability problems into crisis for U.S. households."

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Source: HR Dive

https://www.hrdive.com/news/a-quarter-of-adults-in-employer-plans-are-underinsured-commonwealth-fund-s/584940/

by Tim McElgunn | September 8, 2020

As 2021 open enrollment approaches amid the continuing pandemic, employers are striving to find a difficult balance.

How can you provide the benefits and advice employees deserve and also achieve the needed return on benefits investments?

And its a critical challenge. In multiple surveys, over half of employees say health coverage is the greatest factor in job satisfaction.

And more than three-quarters say the quality and affordability of benefits options influence their engagement and productivity at work.

The COVID-19 crisis is magnifying those challenges and changing what benefits employees need at an incredible speed. A recent research study highlights those pressures:

This is the background as we enter the final months of 2020 and benefits teams continue adjusting plans for a very uncertain 2021.

Here’s a framework you can use to help optimize open enrollment this year.

Building the open enrollment blueprint one question at a time

The issues you’ll face during this year’s open enrollment are going to test your skills and creativity. And one of them is getting leadership to think carefully about those challenges and the choices your organization faces.

They’ll need you to be the calm center of their daily storm of challenges and rely on your expert advice to build the best possible mix of benefits options.

They hope you have all the answers but they absolutely need you to help find the RIGHT questions to ask.

Part of your job is to keep pulling them back to data-driven decision-making.

Here are some questions that you’ll want to drill down on.

• What are critical requirements versus nice to have?
  • From the employer perspective? From the employee perspective?
• If some attractive options are simply unaffordable in the current business climate, are there less expensive, albeit more limited, alternatives available?
• Should you implement auto-enrollment to ensure a minimum level of participation before the deadline?
• What processes are automated now?
  • What MUST be automated immediately to compensate for the pandemic’s impact on in-person interactions?
  • Can non-critical processes be automated cost-effectively?
• Where does the voluntary benefits discussion fit in the enrollment process?
  • Is your EAP prepared for an increase in emotional and behavioral health demands?
  • Are there third party apps or other services, such as financial management, that can be included at little or no upfront cost?
• Are you prepared to launch and manage a comprehensive digital communication campaign?
  • What needs to be different this year? Cadence? Frequency, reminders?
• Will any/all of these changes be permanent?

As you ask these questions, challenge any easy answers and get leadership and your team to dig a little deeper.

And hold back some of your advice until you are satisfied leadership really knows what they want to prioritize.

As 2021 open enrollment approaches, how can employers provide the benefits and advice employees deserve and also achieve needed benefits ROI?

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Source: HRMorning

https://www.hrmorning.com/articles/open-enrollment-2021/

AUTHOR: Kyle Addy | PUBLISHED: Sept. 3, 2020

Even in a virtual environment, employers can still deliver comprehensive communication about benefits and personalized enrollment support, writes Kyle Addy of Colonial Life.

Is it the chicken or the egg?

Employees who admit they don't understand their workplace benefits "at all" plan to spend the least time learning about them before their enrollment, according to a recent Colonial Life survey of 1,200 U.S. adults.

Or maybe because these employees will spend less than an hour on their benefits enrollment this year, they're poorly educated on the important and valuable options available to them at the workplace.

Either way, the survey findings should be cause for concern for human resources professionals charged with implementing an effective benefits enrollment. And the research shows the problem is widespread: Nearly 3 in 4 employees rush through their annual enrollments each year, with 41% spending less than 30 minutes considering their workplace benefits. An additional 32% spend just 30 to 60 minutes learning about their benefits choices. That means the majority of employees spend an hour or less on decisions that can have a significant financial impact on them and their families for a year or longer.Read Now

This dynamic also can have a negative impact on your business, because employees who don't understand their benefits participate at lower levels, engage less strongly with the company, and don't value the considerable investment you're making in the benefits package.

As fall benefits enrollment season approaches, it's critical to map out a strategy to effectively communicate with employees and help them select and enroll in the benefits they need. This vital task will be more challenging than ever this year, thanks to the pandemic and the resulting employee stress, distraction and geographic isolation.

Drive engagement with communication and personal support

Despite the daily reminders of the importance of protecting our physical, emotional and financial health, many workers seem unwilling to set aside the time to understand their needs and options. 

The good news is you can help employees become more engaged in their benefits program by providing both comprehensive communication about benefits options before the enrollment and opportunities for employees to get personalized support during enrollment — even in a virtual environment.

More good news: Delivering effective benefits education and enrollment virtually should be easier this year, since we've all learned to accomplish more things remotely, from staff meetings to doctor visits. In fact, another recent survey shows many employers are taking those lessons and applying them to this year's benefits enrollment. The number of employers who plan to offer employees the opportunity to enroll via videoconferencing or cobrowsing with a benefits counselor nearly doubled, from 23% in 2019 to 42% this year. In addition, 22% will offer individualized, real-time support through telephone enrollments. 

Those virtual "high touch" enrollment methods will replace in-person meetings for many employers: Only about a third will enroll in person this year, compared to nearly half a year ago. The number of employers planning to use online self-service enrollment increased a bit from 47% to 54%.

These trends are likely to continue long term, as more benefits providers and enrollment companies develop technology solutions to deliver a personalized experience for employees in multiple locations and situations. The ideal solution in today's environment may be using a package of high-tech solutions that still provide high (virtual) touch capabilities to create a more cohesive, personalized enrollment strategy for your employees.

Some of the solutions to consider include:

• Virtual meeting technology — Web-based meeting tools offer the opportunity for employees to meet with a benefits counselor to better understand their needs, gaps in coverage and the benefits options available to meet those needs, and complete their enrollment.
• Cobrowsing capabilities — This technology allows an employee and a benefits counselor to review information together, then for the benefits rep to hand over control to the employee to create a secure login and sign insurance applications.
• Call center resources — This is a convenient option for employees without good internet access or who prefer a phone call to an onscreen experience.
• Online scheduling — These tools allow employees to schedule a virtual or telephonic one-to-one meeting for the day and time most convenient for them.
• Digital communications — Your employees have unique needs and preferences, so it's important to use a variety of benefits communication methods to reach them when, where and how they like. These can include emails, digital postcards, custom websites and mobile apps, and digital benefits booklets.

You play an important role in ensuring employees have the support and resources they need to educate themselves about their benefits, so they can protect themselves and their families from whatever the future brings. With the right combination of communication and enrollment strategies and tools, you can create a more successful enrollment this fall.

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Source: HR Dive

https://www.hrdive.com/news/how-to-help-employees-get-more-out-of-benefits-enrollment/584669/

DOL Reminds Employers of an Old Obligation with Modern twists: Tracking hours worked

Tuesday, September 1, 2020

An employer’s obligation to track compensable hours of its employees and compensate employees accordingly is not a new concept. Most employers know of that obligation under the federal Fair Labor Standards Act (FLSA). Yet, tracking hours of remote workers has always been a challenge. Recognizing this issue and the need to address modern day technology at this time of increased remote work, the U.S. Department of Labor (DOL) recently issued a field assistance bulletin explaining employers’ obligations for tracking compensable hours worked by non-exempt remote employees. This is the first update to remote worker guidance provided by the DOL since 1961.

What We Need to Know

The DOL explains what time is compensable and breaks the standard into two scenarios: when an employer has actual knowledge of the work performed and when the employer has constructive knowledge. The constructive knowledge guidance incorporates remote employee challenges.

Actual Knowledge of Work Performed

Under the FLSA, an employer must pay for all time that an employee is “suffered or permitted to work.” This means that an employer must pay an employee for all hours the employee is scheduled and/or directed to work, but it also means that an employer must pay for time that an employee is permitted to perform unscheduled work. If an employee performs work outside of the employee’s scheduled hours, the employee still must be compensated for that work, although an employer can discipline an employee for performing work outside of scheduled working hours and prohibit such work going forward. Simply put, if the employer knows that work is being performed, the time must be compensated.

In a remote work scenario, it is more challenging for employers to know when work is or is not being performed by remote employees. Actual knowledge may be derived from employees reporting that they worked extra hours, or it may be obtained through other means, such as a supervisor directing or receiving work outside of an employee’s scheduled work hours. If the employer has actual knowledge that work is being performed, it must have the employee report/record the hours worked and compensate the employee for the time, including any applicable overtime compensation.

Constructive Knowledge of Work Performed

Under the FLSA, employers must also pay for all time they should know is being worked. This should know standard is very important for employers to understand. The DOL guidance explains that this means that employers must use reasonable diligence to determine all hours being worked by their employees. For example, an employer may provide non-exempt employees with a form explaining that no work is to be performed off-the-clock and that if they perform any work outside of their scheduled working hours like responding to emails, texts or phone calls, they must report it using that form. If the employee fails to report the time worked, the employer generally does not have an obligation to investigate further to determine whether any work is being performed off-the-clock.

The DOL explains that the reasonable diligence standard is based on what an employer should know, not on what an employer could know. Acknowledging the difficulty in defining what this means today, given the advances in technology and substantial increase in remote workers, the DOL guidance provides helpful parameters:

“Though an employer may have access to non-payroll records of employees’ activities, such as records showing employees accessing their work-issued electronic devices outside of reported hours, reasonable diligence generally does not require the employer to undertake impractical efforts such as sorting through this information to determine whether its employees worked hours beyond what they reported.”

Applying this Guidance to your Business

The DOL’s guidance, while specific to the FLSA, applies equally under Wisconsin wage and hour law. It is also important to note that, while the DOL’s guidance is favorable to employers, courts may interpret the laws differently. The bottom line is that employers must implement and communicate reasonable procedures for reporting ALL hours worked by remote employees to reduce the risk of wage claims. This also means that employers should not discourage accurate and complete reporting of work hours or tell employees that work performed outside of scheduled working hours will not be compensated.

Employers should examine current remote worker arrangements and ensure robust record keeping systems, communication plans, and clear remote policies and practices that define work expectations are in place. For example, remote worker policies should make clear that employees are obligated to accurately record all time and employers should enforce the requirement.

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Source: National Law Review

https://www.natlawreview.com/article/three-minute-update-dol-reminds-employers-old-obligation-modern-twists-tracking

The fast-casual burger chain will grant payments ranging from $250 to $400

By Thomas Barrabi | Published August 21, 2020

Shake Shack will offer year-end bonuses to its employees as it continues to recover from the coronavirus pandemic, according to multiple reports this week.

The fast-casual burger chain will grant payments ranging from $250 to $400, Nation’s Restaurant News reported. The employee’s position will determine the size of the payment.

"Taking care of our teams has always been a core tenet of Shake Shack - we couldn’t do this without them,” the company said in a statement to the publication.

The year-end bonuses were announced days after Shake Shack ended a 10 percent hazard pay bonus that employees received during the pandemic. Employees were eligible for the premium pay from the end of April until Aug. 19.

Shake Shack said the increased pay program helped to maintain staffing at the height of the pandemic. Aside from the year-end bonuses for all employees, the company said it will be “guaranteeing bonus payments to all managers” in the third and fourth quarter.

Like many restaurant chains, Shake Shack has struggled to generate revenue during the coronavirus pandemic. The company’s same-store sales plunged 49% in the second quarter. Overall revenue plunged nearly 40% to $91.8 million.

The company has stepped up efforts to alter its business in the current climate, announcing plans to open its first-ever drive-thru location in 2021.

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Source: Fox Business

https://www.foxbusiness.com/markets/shake-shack-year-end-bonuses-coronavirus

AUTHOR: Sheryl Estrada | PUBLISHED: Aug. 25, 2020

Dive Brief:

• Salary increases for employees at many companies in the U.S. are on the horizon for 2021, according to the 2020 General Industry Salary Budget Survey conducted by Willis Towers Watson Data Services released Aug. 17. Amid compensation planning, most employers surveyed are expecting "a turn toward normalcy in 2021," the global advisory, broking and solutions company found. 
• About 7% of companies are not planning pay increases in 2021, "down significantly from 14% this year," according to Willis Towers Watson's survey of 1,010 companies conducted mid-May through late-July. Companies surveyed projected the average salary increase next year will be 2.8% for non management, management and exempt employees. However, hourly and nonexempt salaried employees and executives are expected to receive a 2.7% increase. Performance continues to play a major role in salary increases. "Stars" or employees receiving the highest possible rating were granted an average increase of 4.7%, compared to an average of a 2.8% increase for employees who received an average rating. Across all groups, performance/bonus short-term incentive awards are expected to remain steady in 2021, the firm said.
• Industries impacted during the pandemic such as health care and retail, "are projecting a slight bump but still fall shy of pre-pandemic levels with salary increases projected to average 2.6% and 2.8%, respectively," according to Willis Towers Watson. Meanwhile, above-average increases are projected in the insurance industry (2.9%) and nondurable goods industry (3%). Before the pandemic hit, companies budgeted, on average, 3% increases in salary, but have granted employees increases between 2.5% and 2.7% this year, according to the firm.​

Dive Insight:

During the pandemic, many companies have implemented pay cuts; however, most are determined to pivot back to salary increases, according to Catherine Hartmann, North America Rewards practice leader at Willis Towers Watson. 

"This has been the most challenging compensation planning year for many companies since the Great Recession," Hartmann said in a statement. "However, unlike then, companies have been hit differently depending on their industry, the nature of how work gets done and the type of talent they need." For example, research has shown that sales compensation plans have been adjusted in terms of final compensation. Most companies have reduced the size of 2020 salary budgets and "are holding the line on increases for next year," Hartmann said. 

Managing the short-term effects of financial downturn amid the COVID-19 pandemic effectively can give organizations greater options when it comes to controlling long-term outcomes, Mercer, a human resources consulting firm, told HR Dive in April. Conserving cash and delaying increases and grants this year preserves flexibility, according to Mercer. But at the same time, companies should consider evaluating potential compensation and benefit actions to take later to improve cash flow. If employers achieve a balance between economics and empathy during the pandemic, they will be rewarded with loyalty from workers, candidates and customers, the firm said. 

"Most companies will continue to be in a cash preservation and cost optimization mode regarding their budgets, Hartmann said. "And although many companies are looking toward stabilizing their business next year, the full extent of the economic impact of the pandemic is yet to play out. Companies will remain cautious and continue to adopt strategies that attempt to balance employee engagement with protecting their core business." 

But amid the financial crisis caused by the pandemic, fewer workers are expecting a pay increase, according to an Aug. 4 Randstad US survey. About 62% of the 1,200 employees surveyed said they expect a pay raise every year to remain at their current company, which is down from 82% in 2018. More than half (58%) of the respondents said they would prefer to negotiate for a better benefits package than a higher salary. 

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Source: HR Dive

https://www.hrdive.com/news/salary-increases-set-for-workers-in-2021-compensation-plans-survey-finds/584086/

Aimed at stressed out parents, the offerings try to make up for widespread school closures

By Jena McGregor | August 20, 2020

Tech firms and other major corporations that have long offered family-friendly perks for their employees’ youngest children are adding new educational benefits to help with school-aged kids as working parents again face a school year juggling work and virtual learning.

A program initiated by discussions between Accenture and Bright Horizons, the child care center operator, and being adopted by Microsoft, Bank of America and Accenture, will offer employees of these corporate giants access to small-group, part-time, “school-day supervision” at a heavily subsidized cost.

The program, which will operate through a network of centers that includes Mathnasium, Sylvan Learning and Code Ninjas, will be available to other employer clients of Bright Horizons as capacity allows.

It is one of a fast-growing range of benefits some employers are starting to offer working parents struggling with the crushing stress and financial burden of work and virtual school.

Bank of America and Accenture are continuing their expanded backup child-care benefits and the bank said it would be offering “virtual field trips” and educational webinars for parents. The dairy co-op Tillamook has started offering employees a block of 10 hours of online tutoring per child from an online platform called Varsity Tutors.

“Employees had been through two and a half months of Zoom classrooms, and it was a nightmare, even for the most tech-savvy parents,” said Ellyn Shook, who leads human resources at Accenture. “Parents said they needed educational support, not just babysitting.”

From tutoring discounts to funding searches for virtual school facilitators to help with forming learning pods or micro-schools, the new benefits will be helpful for many exasperated working parents — if yet another way the pandemic is exposing deep inequities between America’s workers.

According to the Society for Human Resource Management, 4 percent of the member companies it surveys in an annual snapshot of employee benefits offered subsidized child-care centers or programs, and about 40 percent did not even offer a dependent-care flexible spending account, a pretax benefit used to pay for child care.

Megan Neumann, a consultant at Mercer who focuses on employer health and benefits issues, said she’s getting at least four times as many inquiries from clients about child care and educational help as she was in March. “Employers really haven’t ever been focused on [the needs of school-age kids]," she said. “People have depended on the school year to provide for watching children and fostering a learning environment.”

Meanwhile, employers are having to consider the safety risks of on-site options while navigating the tricky communication to employees that the new benefits may be only temporary. “They’re re-shifting priorities to have funds available, but for [many employers] this is not a long-term strategy,” Neumann said. “Nobody likes things being taken away.”

Providers of online tutoring platforms such as TutorMe and Varsity Tutors said interest from corporate clients has grown rapidly after being nearly nonexistent before the pandemic. Brian Galvin, chief academic officer of Varsity Tutors, said his company has created a division to focus on employer clients. “It’s a pretty recent phenomenon, even really after July 4,” Galvin said.

Mercer’s Neumann said there has been an “explosion of innovation” from other providers. Wellthy, which helps employers connect workers with assistance for chronically ill family members, added a service to help employees find qualified nannies or virtual schooling facilitators. Chris Bennett, CEO of Wonderschool, a network of in-home preschools and “micro-schools," said he’s getting inquiries from businesses about matching up employees with teachers starting learning pods or other programs in their homes.

Bright Horizons has also received many inquiries about options for older children. In cases where state licensing already allows, Bright Horizons CEO Stephen Kramer said, some of its centers are able to add school-age children to existing operations. In early August, it acquired Sittercity, an online platform for finding nannies or sitters, which recently added the ability to search for learning pods. Employers are also buying subscriptions for their employees to have access to Sittercity.

But some employers were hearing from workers who wanted more educational help. Shook began talking about possible alternatives with Kramer, knowing it had been operating some of its child-care facilities continuously for essential workers since the pandemic started and appreciating the safety measures they were enforcing. That, she said, gave her “confidence that the partners they’re working with are going to follow strict protocols.”

The program, which at launch will include 1,800 Mathnasium, Sylvan Learning and Code Ninja locations, will be offered at three-, four- and seven-hour-per-day increments, depending on provider. It will cost employees $5 an hour, with employers picking up the majority of the cost. Facilitators will help students work through their virtual curriculums, adding activities like extra math or coding during down times.

With safety precautions such as mandatory masks, temperature scans and 10 to 12 kids per location — as well as keeping the same cohort of kids together each day — Shook hopes parents will feel comfortable with the program. If not, Accenture is also offering expanded backup child care and discounts on tutoring.

Keli Kemp, the co-founder of Atlanta-based transportation consulting firm Modern Mobility Partners, said she wasn’t sure she would feel comfortable sending her children to a tutoring center with kids she doesn’t necessarily know. But her small, 15-person firm is offering a “learning pod" for employees with young kids at their unused office space, paying a “learning assistant” to oversee the virtual schooling of one of her children and those of two colleagues, all of whom have been strictly social distancing for months.

The arrangement allows Kemp and her two colleagues to meet in-person two days a week while the learning assistant oversees the kids’ schooling on the other side of the office; the other days, they rotate having her come to their homes. The pod includes a kindergarten girl, a sixth-grade boy, and each of the women has a third-grade son. The boys "knew each other, but during covid they started doing Zoom calls while we would be on Zoom calls,” Kemp said, and all became friends.

The first day of school, Aug. 17, Kemp said she was able to work productively on email and bills, as well as meet with her colleagues face-to-face. “The kids were so quiet this morning — I thought, ‘oh my gosh, this is amazing,’ " she said. "Lunch started getting a little rowdy, but now they’re being quiet.”

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Source: The Washington Post 

https://www.washingtonpost.com/business/2020/08/20/accenture-employer-benefits-school-children-tutoring/ 

By Maddy Simpson | August 13, 2020

As the coronavirus recession continues to impact organizations nationwide, many firms have had to lay off or furlough employees. But now, as the country begins to open up, employers must make decisions about their remaining employees. One big decision: 2020 salary increases.

Since 2009, average salary increases have risen each year since their all time low in 2008 due to the Great Recession.

“As the economy recovered following the financial collapse in 2008, we first saw a gradual rise in salary increase budgets, then a leveling off,” said Sue Holloway, director at WorldatWork. “Over the past two years with low unemployment rates and increased competition for talent, we saw a bigger jump in salary increase budgets.”

WorldatWork’s 2020 Salary Budget Survey surveyed about 5,000 employers to understand what firms were doing with salary budgets in this volatile market.

In 2019, WorldatWork reported an average salary increase across all industries of 3.2%. This year, the average increase dropped to 2.9%. Though 70% of firms still plan to increase salaries between 3% and 4%, many employers are opting to forgo increases altogether due to the pandemic.

The survey reports that all industries surveyed have median salary increases at 3%, with the exception of the educational services industry, which had a median salary increase of 1%. On the flip side, the industries that showed no change from 2019 were the public administration industry and the accommodation and food services industry.

“There's unevenness [in the impact of the coronavirus],” says Catherine Hartmann, rewards practice leader for North America at Willis Towers Watson. “Certain industries have been hit and particularly challenged like healthcare and retail.” Hartmann notes that, in its uneven impact, this recession is different from the Great Recession, so firms have to respond differently than they may have then.

Holloway warns that the pandemic’s effect on salary budget data may not yet be fully realized. Because of this, WorldatWork plans to update the survey in October to see the continual impact of the recession.

As the impact of the pandemic continues to be realized, Hartmann urges firms to remain cautious while still taking steps to recruit and retain employees.

“Caution is wise, but [employers] also have to manage that there still is a war for talent, for particular skills and knowledge areas,” Hartmann says. “So while [employers] should remain justifiably cautious, they might want to adopt strategies that balance employee engagement with protecting their core business and financials.”

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Source: Employee Benefit News (EBN) 

https://www.benefitnews.com/news/salary-budget-increases-fell-on-average-from-2019-to-2020-survey-finds