Risky Business

Cold & Flu Season with a Twist: Is Your Workplace Ready for the Swine Flu?

By Martin Salcedo
The Human Equation

As summer turns into fall, the normal din of the workplace will slowly but surely be supplemented with coughs, sniffles, and sneezes. Those workers who are not calling in sick will be busy wiping their noses and stifling their coughs. Though employers have nimbly handled cold and flu seasons of years past, the 2009 version holds the promise of something much different, and possibly much worse, courtesy of the H1N1 influenza virus—a.k.a., the swine flu.

According to the World Health Organization, the swine flu has entered the pandemic phase. A pandemic, or global disease outbreak, typically involves the emergence of a new virus for which there is little or no immunity in the human population, which is capable of causing serious illness, and which spreads easily from person to person on a global scale. Since the swine flu satisfies these criteria, it must be considered a threat capable of causing significant disruption and harm.

Given the potential consequences of a swine flu outbreak, the need to protect one’s home and family is obvious. However, what should not be overlooked is preparation and protection in the workplace, since the amount of time spent in the workplace often exceeds the amount of time spent elsewhere. Thus, in the event of a swine flu outbreak, employers will play a key role in protecting their employees’ health and safety, as well as limiting the impact on the business itself. Accordingly, employers must have a contingency plan in place for dealing with a swine flue outbreak.

The measures that must be taken to protect the workplace and the workforce must be consistent with the risk of occupational exposure in a particular work environment. The level of risk depends, in part, on whether jobs require close proximity to potentially infected people, or whether they are required to have either repeated or extended contact with known or suspected sources of the swine flu. The significance of proximity to infected people stems from the manner in which the flu virus spreads among people.

Influenza is thought to be primarily spread through large droplets that directly contact the nose, mouth, or eyes. These droplets are produced when infected people cough, sneeze, or talk, thereby sending relatively large infectious droplets and very small sprays into the nearby air. To a lesser degree, human influenza is spread by touching objects contaminated with the virus and then transferring the infected material from the hands to the nose, mouth, or eyes.

Relying on the manner in which the flu virus may be transmitted from person to person, the Occupational Safety& Health Administration (OSHA) classified the risk of occupational exposure in the following manner:

• Very High Exposure Risk occupations are those with high potential exposure to high concentrations of known or suspected sources of pandemic influenza during specific medical or laboratory procedures. Health care and medical laboratory personnel performing procedures on infected individuals or handling infected specimens typically fall into this category.

• High Exposure Risk occupations are those with high potential for exposure to known or suspected sources of pandemic influenza. Health care professionals and medical transport personnel required to remain in close proximity with infected individuals typically fall into this category.
• Medium Exposure Risk occupations include jobs that require frequent, close contact (within 6 feet) to other people such as coworkers and the general public. Teachers and those working in high-density work environments typically fall into this category.
• Low Exposure Risk occupations are those that do not require contact with people known to be infected nor require close contact with the public, such as typical office employees.

Determining the level of risk exposure should be the first step to devising a plan for the prevention of spreading the swine flu virus in the workplace. For example, those working in a very high risk exposure occupation may consider requiring the use of personal protective equipment, such as gloves, respirators, or facemasks. Employers operating a workplace with a low exposure risk would likely implement a more subtle approach to preventing the spread of swine flu in the workplace.

However, regardless of the level of exposure risk, there are steps every employer should take to reduce the risk of spreading the swine flu in the workplace. These steps include:

• Avoiding crowded settings, such as meetings, as much as possible. This can be accomplished by keeping necessary meetings as short as possible, and by using teleconferences, virtual meetings, etc. in lieu of physical meetings.

• Encouraging sick employees to stay at home by letting them know that they will not suffer any adverse consequences by missing work due to illness.
• Encouraging employees to wash their hands frequently with soap and water or with a hand sanitizer. Employers should consider providing adequate cleaning materials to their workforce.
• Encouraging employees to avoid touching their noses, eyes, and mouths.
•  Encouraging employees to cover their coughs and sneezes with a tissue and disposing of tissues in no-touch trash receptacles. Employees should wash their hands immediately after coughing, sneezing, or blowing their nose.
• Encouraging employees to avoid close contact (within 6 feet) with coworkers and customers and to avoid shaking hands.
• Keeping frequently touched common surfaces, such as telephones, computer equipment, and door handles, clean.
• Encouraging employees from using other workers’ phones, desks, offices, or equipment.
• Limiting unnecessary visitors in the workplace.

Implementing these preventative steps can go a long way towards reducing the likelihood of an outbreak in the workplace. Additionally, employers should engage their state and local health departments to stay current on any new developments involving the swine flu. Since constant change is characteristic of a pandemic, employers must ensure they are operating with the most current information.

As with any other threat to the workplace and the workforce, such as a natural disaster, the only way to successfully mitigate the damage is to plan ahead. Without exception, employers should anticipate the possibility of a swine flu outbreak affecting their workforce, and should have a contingency plan in effect to handle the event, because any business operation that fails to plan ahead may find the 2009 version of the cold and flu season to be its last.

 

COBRA's New Look: The American Recovery and Reinvestment Act's Premium Reduction Provisions

By Martin Salcedo, Esq.
The Human Equation, Inc.

How does the American Recovery and Reinvestment Act of 2009 (ARRA) change the way an organization deals with the Consolidated Omnibus Budget Reconciliation Act (COBRA)?

COBRA is the federal law that gives workers who lose their jobs, and thus their health benefits, the right to continue group health coverage under their former employer’s health plan. As originally enacted, employees electing COBRA continuation benefits are required to pay the entire premium for their health insurance. Although the cost was ordinarily higher than what the employee paid while employed (because the employer was no longer contributing to the premium), it was typically cheaper than the cost of individually obtaining private health insurance coverage.

Unfortunately, the increasing number of people losing their jobs during the current financial crisis has left larger numbers of people without employer-provided health insurance, thereby resulting in increased reliance on COBRA. However, since individuals insured under COBRA are, for the most part, unemployed, maintaining their health insurance, despite the lower price, has become cost prohibitive. Thus, more and more people are left uninsured.

In response to this trend, Congress passed the American Recovery and Reinvestment Act of 2009 to, in part, preserve and improve affordable health care. Signed by President Obama on February 17, 2009, the ARRA effectively reduces an individual’s cost of maintaining health care under COBRA.

Under the ARRA, “assistance eligible individuals” are required to pay only 35 percent of their COBRA premiums—the remaining 65 percent of the premium is subsidized by the government. The subsidy comes in the form of a credit taken against the employer’s employment taxes, and is claimed by the employer who paid the 65 percent share of the COBRA premium by filing the January 2009 revision of the IRS Form 941 (Employer’s Quarterly Federal Tax Return). If the payroll tax credit amount is greater than the taxes due, the Secretary of the Treasury will directly reimburse the employer. Under this scheme, assistance eligible individuals will not receive any payments.

The premium reduction provisions of the ARRA apply only to assistance eligible individuals, which are defined as employees or members of their families, who:

• are eligible for COBRA continuation coverage at any time between September 1, 2008 and December 31, 2009;

• elect COBRA coverage; and
• are eligible for COBRA as a result of the employee’s involuntary termination between September 1, 2008 and December 31, 2009.

Those qualifying as assistance eligible individuals are entitled to the premium reduction beginning on or after February 17, 2009.

Given the timing and applicability of the ARRA (it retroactively applies to individuals involuntarily terminated as of September 1, 2008, but it was not enacted until February 17, 2009), many individuals did not elect COBRA benefits at the time of their involuntary termination because they did not become aware of the ARRA’s premium reduction provisions until after their opportunity to elect COBRA benefits had expired. Such individuals would not be considered assistance eligible individuals because they did not elect COBRA coverage. To remedy this situation, the ARRA includes a provision providing assistance eligible individuals with a new opportunity to elect COBRA benefits.

Under this provision, individuals involuntarily terminated from September 1, 2008 through February 16, 2009, who did not elect COBRA when it was first offered or who did elect COBRA but are no longer enrolled (for example because they were unable to continue paying the premium) have a new election opportunity. This new election period begins on February 17, 2009 and ends 60 days after the COBRA benefits plan provides the required notice to such employees.

The premium reduction for an individual can last up to nine months. However, it will end earlier if the individual becomes eligible for Medicare or another group health plan (such as a plan sponsored by a new employer or a spouse’s employer), or if the individual reaches the end of the maximum COBRA coverage period. Individuals receiving the premium reduction must notify their plans if they become eligible for coverage under another group health plan or Medicare.

The ARRA’s premium reduction provisions are subject to income limits. If an individual’s modified adjusted gross income for the tax year in which the premium assistance is received exceeds $145,000 (or $290,000 for joint filers), then the amount of the premium reduction received during the tax year must be repaid. For taxpayers with adjusted gross income between $125,000 and $145,000 (or $250,000 and $290,000 for joint filers) the amount of the premium reduction that must be repaid is reduced proportionately.

Plan administrators must provide notice about the premium reduction to individuals who have a COBRA qualifying event during the period from September 1, 2008 through December 31, 2009. The notice(s) must include the following information:

• the forms necessary for establishing eligibility for the premium reduction;
• contact information for the plan administrator or other person maintaining relevant information in connection with the premium reduction;
• a description of the second election period (if applicable to the individual);
• a description of the requirement that the assistance eligible individual notify the plan when he or she becomes eligible for coverage under another group health plan or Medicare, and the penalty for failing to do so;
• a description of the right to receive the premium reduction and the conditions for entitlement; and
• if offered by the employer, a description of the option to enroll in a different coverage option available under the plan.

Individuals who are denied eligibility for the premium reduction (whether by their plan, employer, or insurer) may request an expedited review of the denial by the U.S. Department of Labor. Under the ARRA, the Department of Labor must make a determination within 15 business days of receipt of a completed request for review.

As with any new law, the precise impact of the legislation may not be felt for some time. Moreover, given the lack of history to learn from, there are bound to be some issues in the manner in which the ARRA’s provisions are implemented and maintained.

Absent further legislation, COBRA will presumably return to its pre-ARRA state once individuals are no longer entitled to premium reductions (i.e., nine months after December 31, 2009). However, a considerable amount of time remains between now and then. Thus, employers must become comfortable with the ARRA’s amendments to COBRA, and must tap all the necessary resources to ensure compliance.

To learn more about COBRA, as well as the ARRA’s changes to COBRA, click here to purchase The Human Equation’s Complying with COBRA Online Training course. 

 

Here We Go Again: U.S. Citizenship and Immigration Services Revises Form I-9

By: Martin Salcedo, Esq.
Setnor Byer Insurance & Risk

NOTE: This article was previously published on January 28,2009. However,since the original posting date, the USCIS delayed the implementation of the revised Form I-9. The new date when employers must begin using the Form I-9 is April 3, 2009.

Now that employers across the country have finally become proficient in using the Employment Eligibility Verification Form—Form I-9—after its last revision in December 2007, the U.S. Citizenship and Immigration Service (USCIS) determined that Form I-9 was due for yet another revision.  As of April 3, 2009, the version of the Form I-9 dated 06/05/2007 will no longer be valid, and all employers will be required to use the newly revised version of Form I-9 dated 02/02/09.

The purpose of Form I-9 is to document that a newly hired employee (whether a citizen or non-citizen) is authorized to work in the United States.  The Form I-9 process requires employers to collect information from all new employees to verify such authorization.  Authority for the collection of such information comes from the Immigration Reform and Control Act of 1986 (IRCA), which makes it unlawful to hire, or continue to employ, an individual whom the employer knows is not authorized to work in the United States.

The Form I-9 process requires newly-hired employees to present, and employers to inspect, acceptable documentation that establishes an employee’s right to work in the United States.  The acceptable documents fall into three categories:

• documents that establish both identity and employment authorization (List A);
• documents that establish identity (List B); and
• documents that establish employment authorization (List C).

To establish identity and employment authorization, an employee may present either one original document from List A, or a combination of original documents from List B and C.  Despite the revisions to Form I-9, this process remains unchanged.  However, the list of acceptable documentation has changed.

The most significant change to Form I-9 is that all documents presented during the verification process must be unexpired.  The USCIS made this change because unexpired documents may not portray a valid status, and because they are prone to tampering and fraudulent use.

In addition to banning the use of expired documents, the revised Form I-9 includes changes to List A of acceptable documents.  Two documents have been added to List A:

• a foreign passport that contains a temporary I-551 printed notation on a machine-readable immigrant visa, which is in addition to a foreign passport with a temporary I-551 stamp; and
• a passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI.

Moreover, the revised Form I-9 removed three documents from List A:

• Form I-688, Temporary Resident Card;
• Form I-688A, Employment Authorization Card; and
• Form I-688B, Employment Authorization Card.

Since the USCIS no longer issues these cards, and all that were in circulation have expired, these forms are no longer considered acceptable documents and, accordingly, can no longer be used when completing the Form I-9.

The revised Form I-9 includes some other minor changes, such as providing employees with the option of attesting to being either a citizen or noncitizen national of the United States.  However, despite these changes, other aspects of the authorization process have not changed, including the following:

• Employers must still examine evidence of identity and employment authorization (using acceptable documents only) within three business days of the date employment begins.
• Employers must retain completed Form I-9’s for three years after the date of hire or one year after the date employment ends, whichever is later.
• Employers must keep the completed Form I-9’s and must not file them with the USCIS.
• Completed Form I-9’s must, upon request, be made available for inspection by officials of the U.S. Immigration and Customs Enforcement, the Department of Labor, and the Office of Special Counsel for Immigration Related Unfair Employment Practices.
• Employers cannot specify which document(s) they will accept from an employee.
• Employers cannot discriminate against employees during the Form I-9 process.

According to the USCIS, the revised Form I-9 will streamline and improve the security of the employment authorization verification process.  Nevertheless, the prospect of change always creates the potential for confusion.  Unintentional violations of the authorization process are violations nonetheless.  Thus, employers must ensure they are properly using the updated version of Form I-9 as of February 2, 2009 to avoid the consequences of noncompliance.

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Employers Must Use Revised Form I-9 as of February 2, 2009

Here We Go Again: U.S. Citizenship and Immigration
Services Revises Form I-9

By: Martin Salcedo, Esq.
Setnor Byer Insurance & Risk

Now that employers across the country have finally become proficient in using the Employment Eligibility Verification Form—Form I-9—after its last revision in December 2007, the U.S. Citizenship and Immigration Service (USCIS) determined that Form I-9 was due for yet another revision.  As of February 2, 2009, the version of the Form I-9 dated 06/05/2007 will no longer be valid, and all employers will be required to use the newly revised version of Form I-9 dated 02/02/09.

The purpose of Form I-9 is to document that a newly hired employee (whether a citizen or non-citizen) is authorized to work in the United States.  The Form I-9 process requires employers to collect information from all new employees to verify such authorization.  Authority for the collection of such information comes from the Immigration Reform and Control Act of 1986 (IRCA), which makes it unlawful to hire, or continue to employ, an individual whom the employer knows is not authorized to work in the United States.

The Form I-9 process requires newly-hired employees to present, and employers to inspect, acceptable documentation that establishes an employee’s right to work in the United States.  The acceptable documents fall into three categories:

• documents that establish both identity and employment authorization (List A);
• documents that establish identity (List B); and
• documents that establish employment authorization (List C).

To establish identity and employment authorization, an employee may present either one original document from List A, or a combination of original documents from List B and C.  Despite the revisions to Form I-9, this process remains unchanged.  However, the list of acceptable documentation has changed.

The most significant change to Form I-9 is that all documents presented during the verification process must be unexpired.  The USCIS made this change because unexpired documents may not portray a valid status, and because they are prone to tampering and fraudulent use.

In addition to banning the use of expired documents, the revised Form I-9 includes changes to List A of acceptable documents.  Two documents have been added to List A:

• a foreign passport that contains a temporary I-551 printed notation on a machine-readable immigrant visa, which is in addition to a foreign passport with a temporary I-551 stamp; and
• a passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI.

 Moreover, the revised Form I-9 removed three documents from List A:

• Form I-688, Temporary Resident Card;
• Form I-688A, Employment Authorization Card; and
• Form I-688B, Employment Authorization Card.

Since the USCIS no longer issues these cards, and all that were in circulation have expired, these forms are no longer considered acceptable documents and, accordingly, can no longer be used when completing the Form I-9.

The revised Form I-9 includes some other minor changes, such as providing employees with the option of attesting to being either a citizen or noncitizen national of the United States.  However, despite these changes, other aspects of the authorization process have not changed, including the following:

• Employers must still examine evidence of identity and employment authorization (using acceptable documents only) within three business days of the date employment begins.
• Employers must retain completed Form I-9’s for three years after the date of hire or one year after the date employment ends, whichever is later.
• Employers must keep the completed Form I-9’s and must not file them with the USCIS.
• Completed Form I-9’s must, upon request, be made available for inspection by officials of the U.S. Immigration and Customs Enforcement, the Department of Labor, and the Office of Special Counsel for Immigration Related Unfair Employment Practices.
• Employers cannot specify which document(s) they will accept from an employee.
• Employers cannot discriminate against employees during the Form I-9 process.

 According to the USCIS, the revised Form I-9 will streamline and improve the security of the employment authorization verification process.  Nevertheless, the prospect of change always creates the potential for confusion.  Unintentional violations of the authorization process are violations nonetheless.  Thus, employers must ensure they are properly using the updated version of Form I-9 as of February 2, 2009 to avoid the consequences of noncompliance.

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