Since the COVID-19 pandemic, employees working from home (WFH) have created a host of new wrinkles for employers, many of which are still being ironed out.

For employees, the WFH option can be safer (less chances of contracting COVID) and easier (no more commute); for employers, WFH reduces the cost of overhead and can result in happier, more productive employees.

While it may sound easy to simply hire a worker on the other side of the country, there are several legal questions for employers who want to recruit and hire an out-of-state employee who will WFH. The following are some of the important issues that employers should consider.  

  • Recruiting. Looking for a new employee beyond state lines appears to present a limitless supply of potential new workers. But employers need to familiarize themselves with the laws of the state where the applicant lives, particularly with regard to issues such as background checks, criminal record searches and compensation.

Several states – including New Jersey and New York – prohibit employers from inquiring about a job applicant’s salary, benefits and other compensation history.

Other factors may make certain locations a more advantageous space to find new WFH hires.

Some states offer financial incentives to remote workers. Alabama, Georgia, Oklahoma and West Virginia offer bonuses to entice remote workers, ranging from reimbursement of moving expenses to $12,000 in cash (West Virginia will pay $10,000 divided over the course of 12 months with $2,000 paid at the end of the second year in residence).

  • Employee benefits and protections. Once an out-of-state employee has been hired to WFH, employers have a whole new list of individual state laws to learn. Each state has its own variations on employee benefits as well as legal protections – and in many cases, additional differences at the county and/or municipal level.

These differences can present the possibility of additional liability for employers on issues such as paid sick leave, paid family leave, minimum wage, disability, unemployment and vacation days, among others. 

State laws on minimum wage vary widely, along with differences for tip credits and minimum salary thresholds for exemptions. The current minimum wage in Texas is $7.25 per hour, for example, while New York’s minimum wage is $11.00.

Paid family leave is now mandatory (or will be soon) in California, Colorado, Connecticut, Massachusetts, New Jersey, New York, Oregon, Rhode Island, Washington and Washington, D.C.

As for overtime, most states follow the standard payment of time-and-a-half for hours worked over 40 in a workweek, but a handful (including California) have more stringent requirements, while some states (California again) mandate that earned vacation days never expire. 

Without a physical location in the state where a WFH employee resides and a breakroom to hang various notices, an employer must still remember to fulfill poster and notification obligations as well as various mandatory trainings. Remote employees do not need to tape posters up on their walls to satisfy state laws, but employers do need to provide certain information and documentation to out-of-state WFH employees to achieve compliance by sharing – and updating – federal, state and local notices.

Even if an employer has a single WFH employee in another state, workers’ compensation insurance is necessary, along with registration with the appropriate state agency. Some states have their own fund that employers must contribute into, while a third-party insurance company will suffice in others.

In addition, each state has different laws on employee protections, sometimes with variations at the local level. Employers should be careful to consider state, county and/or municipal statutes and regulations with regard to noncompete agreements, discrimination and retaliation protections and the requirements to legally terminate an employee.

  • Tax implications. Employees must be registered for tax purposes in the state where they reside, which means the company itself needs to register its presence in those states for tax purposes. That potentially newfound “tax nexus” to another state may mean sales and use taxes, income taxes and franchise taxes for the employer as well, depending on the requirements of the other state. The failure to properly register and pay the appropriate taxes can result in fines and penalties.

The registration process requires paperwork, time and patience, as it can take several weeks for an employee and the employer to be property registered. And some states – Pennsylvania, for example – also have local city or township registration requirements in addition to those at the state level.

Employers may also be subject to higher corporate income tax rates, which is calculated in part based on the employee’s role and seniority. So a WFH executive in a state with a high tax rate may cost an employer more money than a lower-level WFH employee in that state.

WFH employees themselves may face a tax conundrum with the “convenience of employer” rule that applies in seven states. In Arkansas, Connecticut, Delaware, Massachusetts, Nebraska, New York and Pennsylvania, if an employee works in a different state than her employer by choice – not because the job mandates – then the employer’s state has the right to tax her, and the employer would be required to withhold taxes from her paycheck in both her home state and the employer’s.

Alternatively, some states have reciprocity agreements that expressly forbid this double taxation. A total of 16 states and Washington, D.C. have such deals, where an employee who lives in Wisconsin and works for an Illinois employer, for example, only pays income taxes in Wisconsin. States that have reached such agreements typically share a border, although Arizona has gone above and beyond, with reciprocity in California, Indiana, Oregon and Virginia.

One additional complication: some states have issued temporary guidance to deal with the out-of-state WFH situation during COVID. Alabama and Georgia stated that they would not enforce payroll withholding requirements for employees who are temporarily working from home due to government-mandated stay-at-home orders; Connecticut said that employees WFH due to the pandemic is a necessity for work but New York reached the opposite conclusion, stating that it is for the employee’s convenience.

Employers should consider all of the legal ramifications before hiring an out-of-state WFH employee.

The U.S. Equal Employment Opportunity Commission (EEOC) updated its guidance and FAQs on workplace COVID-19 vaccination policies on May 28, stating that employers may request proof of vaccination status and offer incentives to encourage employees to receive the vaccine.

Requesting proof that employees received a vaccination on their own is not a disability-related inquiry under the Americans with Disabilities Act, and therefore an employer may offer an incentive to employees to provide such proof, according to the EEOC. However, employers must consider reasonable accommodations for workers who decline to be vaccinated for religious or disability-related reasons.

Is there a difference between a visionary and a leader in an organization? If you posed the question to a C-suite professional who’s led by a so-called “visionary leader,” they might say that a visionary and a leader are one in the same; any individual can exhibit both qualities. While this is certainly true, those gifted with both vision and discipline are rare, and they’re often more well known for being controversial figures.

In this article, we’ll take a closer look at modern-day examples of both visionaries and leaders, along with some dynamic duos. We’ll also discuss some of the key differences between the two types of executives and their personalities. Recognizing both the differences and similarities can help you better understand the leadership dynamics at play in your own organization.

Visionary Leaders

Visionaries are exceptional creative forces who bring forward ideas to change the world. They see the potential of what could be, rather than what is. They are creators, inventors, and often entrepreneurs. While they’re undoubtedly talented, they are often perceived as idiosyncratic or capricious.

Take, for instance, Steve Jobs. It’s been well documented that he could be dictatorial, difficult, and even mean-spirited. However, Jobs had a clear vision, a passion for Apple, and the competence and magnetism that was needed to  inspire trust in a brand that frequently bucked convention. Ultimately it was Jobs’s creative vision that allowed him to return to his role as Apple CEO in 1997 after departing the company in 1985.

Visionaries can be prone to making unilateral decisions, sometimes lacking empathy for how those decisions may impact others in the organization. For instance, in 2018, Elon Musk tweeted that he was considering taking Tesla private. His hasty action resulted in a public relations and legal nightmare for the company. Musk followed that up with an appearance on a podcast, in which he smoked a cigar consisting of tobacco laced with cannabis and spoke about recreational drug use. The incident fueled rumors about his unstable behavior and resulted in a drop of Tesla’s stock price. Given the enormous success and innovation of Tesla and SpaceX, it may be going too far to call Elon Musk’s leadership style “failed leadership,” but it’s impossible to deny that his unilateral approach occasionally hurts Tesla’s position.

Then there’s Mark Zuckerberg, who remains chairman, CEO, and controlling shareholder of Facebook, the company he launched in his Harvard dorm room in 2004. While he’s a passionate creative, Zuckerberg is also able to recognize his weaknesses alongside his strengths. A great example of his approach is the hiring of COO Sheryl Sanderg, who brings balance to the organization with her disciplined ability to execute on Zuckerberg’s vision. Facebook has seen its share of ups and downs and controversies in recent years, but Sandberg remains Zuckerberg’s loyal teammate who drives stability in the turbulent social media landscape.

As evident in these examples, visionaries are often colorful personalities who are put in leadership positions because they are the inventors; however, their leadership and execution skills are not always aligned with what an organization needs to sustain stable growth. This is an important takeaway for your own organization. Not every company is inventing new social media platforms or commercial space rockets, but every market-leading company needs innovation alongside the ability to execute creative ideas. By definition, companies that lean on formula and tradition can only ever achieve moderate standings in their industry–they will never lead it. But the companies who are subject to the whims of the difficult genius also suffer for it due to a lack of execution. For execution expertise, look to leaders who can share a creative vision.

Leaders vs. Visionaries

It’s one thing to create something knowing that it has the potential to change the world, but it’s another thing entirely to ensure the quality and sustainability needed to deliver it. Leaders don’t have to be crazy risk takers when they are put in charge of generational, time-tested brands. Rather, they need to stay aligned with the company’s overall vision, motivate key teams, and bring quality to the innovative products that are created. Leaders get things done by inspiring and exciting others, and they understand the organizational skills that are needed to implement great ideas.

Mary Barra, CEO of General Motors, has not reinvented the wheel or the car. She rose through the ranks of this well-established company and exhibited incredible work ethic in every role. As CEO, she stays up to date on all new developments, and her oversight of innovative teams has allowed GM to take on new challenges successfully. A colleague noted her “consensus approach”, and she’s been known to conduct town hall meetings to seek input on projects. Overall, Barra exhibits a leader’s empathetic qualities and creates an inclusive environment where employees can voice their opinions.

Another example of iconic brand leadership is Roy Disney. His younger brother Walt was the creative visionary and a great business man in his own right, but Roy is credited for being the financial genius behind The Walt Disney Co. He had excellent people skills, and was reportedly able to read a personality with a mastery that paralleled Walt’s ability to assign personalities to cartoons. In 1945, he succeeded Walt as President to relieve him of administrative responsibilities, and later postponed his own retirement to oversee the building of Disney World after Walt’s death.

Bridging the Ground Between Vision and Execution

Visionary leadership is widely considered the key to strategic change, reports Harvard Business Review (HBR). It’s not just about strategic direction, but inspiring others to embrace change and work hard to achieve it. HBR’s research has found that the positive impact of visionary leadership can break down when middle managers aren’t aligned with top management’s strategic vision. This can result in the impediment or failure of strategic change initiatives.

In its earliest days, the Disney vision was a lot to take in, from colorful characters in cutting-edge animated films to a theme park of magical proportions. Walt Disney was a once-in-a-generation visionary, but he relied on his brother Roy to share in his vision. Together, they built the team to execute a brand that defined a generation of children.

Similarly, Steve Jobs had the vision to create a compact device with “1000 songs in your pocket,” but he couldn’t execute it alone. He needed to surround himself with engineers and consumer marketing teams that believed in the product. Jobs also needed to be able to communicate and break down his ideas for other teams to understand. That quality applies to all visionaries. If you can’t communicate ideas to at least one other leader who can help translate them, innovation will stall and the company will not move forward.

Visionaries and leaders also need to share a healthy dose of optimism. They need to believe in the opportunity to create and remain optimistic that consumers will embrace new ideas and products. Companies that have an ample supply and adequate balance of shared vision with communication, optimism, and execution are well positioned for success.

Change is an inevitable part of life, especially now as it’s accelerating to a never-before-seen rate. With this in mind, even if we don’t catalyze change ourselves, we’re bound to get swept up in its wake at some point. So, rather than being caught off guard when this occurs, it’s always best to be prepared.

Navigating Organizational Change

Among other things, organizational change is one of the main factors that disrupt our lives. Whether it’s a promotion, corporate transfer, or restructure due to budget cuts, organizational changes are typically out of our hands; instead, we’re at the mercy of higher-ups like executives, board members, and shareholders. 

With this in mind, when it comes to working, the best thing we can do is know how our position in an organization and serves its mission. Not only will others in the organization see our dedication, but we’ll be able to navigate change more easily as we see the reasons behind the changes being placed upon us.

However, rather than simply coping with change via a reactionary approach, it’s best to use change as a catalyst to manifest transformations of our own.

Embracing Evolution

If we become the master of our own evolution, we’ll have a better chance of heading in a desirable direction. So, use the organizational changes occurring in the present as an indicator of what changes might happen in the future. Start investing in yourself to be more prepared for the coming shifts.

That could mean it’s time to look towards the next role that you see becoming more important. If so, start taking courses, learning new skills, and launching new projects. As you do, you won’t be a victim of change, rather, you’ll thrive when the right opportunity presents itself. 

Stay Patient and Be Committed

When it comes down to it, we’ve all been through changes before, and typically, in hindsight, they’re far less dramatic than we perceived them at the time.

So when change strikes, the best thing to do is breathe, stay focused on your mission as an individual, and do whatever you can to work towards a brighter future.

“When written in Chinese, the word crisis is composed of two characters—one represents danger, and the other represents opportunity.” 

– John F. Kennedy

In times of great uncertainty, the first impulse is to be cautious. Yet, history has shown that those who follow through on new and bold ideas can become tomorrow’s innovators. The leaders who succeed are those that quickly reconcile what they can and cannot control, allowing them to effectively rise above challenging circumstances.

Issac Newton made some of his greatest contributions to math and science— including inventing calculus and deepening our understanding of gravity— while enduring long periods of isolation brought on by the plague. What could have been considered a frustrating moment in time, brought Newton to the forefront of leadership in math and physics.

Walt and Roy Disney launched Walt Disney Productions just as the United States was entering the Great Depression. As change-ready leaders, the brothers did not stop transforming. A few years later, Walt would go on to make a more daring move – he created Snow White and the Seven Dwarfs, the first American feature-length animated film.

Walt saw an unmet need for sophisticated animation and storytelling and acted on that vision despite criticisms that the movie would be “Disney’s folly.” Snow White became an instant success in its 1937 debut and remains one of the most successful films ever made. And to this day, The Walt Disney Company continues to reinvent itself, producing products, experiences, and stories that become cultural touchstones.

More recently,  Airbnb, a  startup that has transformed the way we vacation, launched during the Great Recession. As the travel industry experienced a massive loss in revenue in early-to mid-2020, Airbnb pivoted once again. Going back to its core value of “Belong Anywhere,” the company brought the thrill of experiencing different cultures to people’s homes through Online Experiences. These interactive opportunities to cook, learn, and connect with people across the world enables Airbnb different ways to increase its earnings.

Disruptions can also benefit long-standing organizations. It is not an easy endeavor, and only 3% of public companies seek strategic transformations; yet, it is possible. Not too long ago, Netflix was mailing DVDs before it transformed into a leading content producer. While we still think of Amazon as a powerhouse in e-commerce, the company has been quietly amassing a profitable cloud services division.

Chances are your organization has considered diversifying its revenue streams when the future appeared more certain. Executives Unlimited has nearly 20 years of experience in recruiting strong CEOS, presidents, and board members who can help your company reach the next level of success even during uncertainty. We believe challenging times can create unique opportunities for companies to grow and become more resilient.

“A clear vision, backed by definite plans, gives you a tremendous feeling of confidence and personal power.” – Brian Tracy

From Brian Tracy to Tony Robbins to Napoleon Hill, nearly every great personal-development coach will tell you that the most successful individuals rise in life due to their outstanding propensity for planning.

Although the future is always unknown, planning at least gives us the opportunity to anticipate what is to come so that we are always ready to make the most of each moment, thus maximizing our efficiency. By thinking ahead, we are also able to get ahead, which gives us a strong competitive advantage in the market.

With this in mind, it’s clear that every ambitious organization should make planning a priority. While most businesses emphasize planning in the short term, few take the time to truly consider and implement long term goals.

One of the most important ways to prepare for the future is through succession planning, a process that ensures your next generation of leaders are capable and that their transition into power is seamless.

Although it can be difficult to think about the future when there are so many pressing needs in the present, there are many compelling reasons to start succession planning early.

The Importance of Succession Planning

Inevitably, every CEO will leave their company eventually. But even with this knowledge, a recent study revealed that only 54% of boards are training a specific successor, and nearly 39% have no viable internal candidate to promote when the situation arises.

This lack of preparedness can come at a big cost. In fact, large companies that undergo forced succession lose an average of $122 billion in market value. Furthermore, the longer it takes a company to find a new CEO during a succession crisis, the worse that the company performs compared to its peers.

When it comes to succession for family businesses, the outlooks are even worse. Over 80% of family businesses have no succession plan in place, which leads around 70% of family-run businesses to fail or be sold before the second generation takes over

It’s easy to see that through proper succession planning, an organization can easily get ahead in the marketplace. For that reason, it’s imperative for all companies to make succession planning a priority if they hope to stand out.

How to Plan for Leadership Succession

If managed properly, succession planning can be broken into small, easy tasks that will save you time and stress in the future. This process should typically start at least one year prior to the day that your incumbent executive plans to leave.

Although every company is different, there are some general guidelines for succession that your organization can follow.

Find the Right Advisors

Succession planning can be a complex and intricate process that requires taking an objective look at a company. For that reason, it’s important that organizations employ outside consultants as they prepare to take on their next generation of leaders.

This need for advisors is especially prevalent in family-run businesses, who often have a harder time analyzing their needs objectively due to internal politics driven by close family ties.

These advisors can come in the form of a board of directors or an executive search firm who can provide clear advice that is tailored to your unique needs.

Establish a Vision

After securing trusted advisors, they will be able to help you review your business’ performance in the past and present. Throughout this process, your advisors can also help you to take stock of your team, looking at each employee’s strengths and weaknesses.

Based on this analysis, you will understand the ideal qualities and core competencies that are required to drive your organization towards greater success. Together with your advisors, you will be able to put together a realistic vision of your ideal leader.

Communicate Your Plan

Once you know what you’re looking for, it’s best to inform your staff that you’ve initiated the search for a successor. This will serve two key purposes: first, it keeps your employees in the loop so that their questions or concerns about the process can be addressed. Second, it gives members of the staff the chance to step up to train for the position themselves.

Promoting from within is typically better than hiring externally. This is because internal hires are more able to seamlessly preserve the corporate culture. They will also be more familiar with how the incumbent ran the business, and thus be more capable of emulating their leadership style, making the transition less jarring.

Hiring externally has its perks as well, such as providing the opportunity to invite new ideas, perspectives, and approaches into the organizational culture. Throughout the entire process of searching for new employees, an executive search firm can be of great assistance.

Onboarding the Next Generation of Leadership

After you’ve informed your staff and initiated your search for candidates who complement your existing core capacities while also meeting your needs, you’re ready to start an in-depth interview process to ensure that you make the right choice

After selecting a candidate, a lengthy onboarding process should be carried out in order to ensure a seamless leadership transition. During this process, the candidate should spend a few months shadowing and assisting the incumbent executive so that they learn the ropes in a hands-on, experiential way. If this grace period is given, the candidate will be able to hit the ground running at full speed as soon as the incumbent officially leaves.

Success for Generations to Come

Even though succession planning can seem like a big responsibility amidst an already packed corporate schedule, partnering with us can ensure that business runs as usual when the inevitable leadership change occurs. We wish you a seamless succession process!

Follow Executives Unlimited on LinkedIn for updates & news in the recruiting world, career tips for Executives and more.

This blog was originally drafted by Executives Unlimited.

Executives Unlimited serves a global roster of clients ranging from entrepreneurial middle market companies to billion-dollar multinational corporations, both publicly and privately held, as well as nonprofits.

With offices in California, Utah, New Jersey and Connecticut, Executives Unlimited provides clients with a nationwide perspective of well-qualified candidates for upper management positions including Presidents, Vice Presidents, Chief Executive Officers, Chief Financial Officers, Chief Operational Officers, Directors, General Managers, and Interim Executives.

Last month, the IRS issued guidance (notice 2020-65) on the President’s recent executive order to defer certain payroll tax obligations. Specifically, employers could offer to suspend their workers’ Social Security payroll taxes from Sept. 1 through Dec. 31, 2020. This deferral would apply only to employees whose wages are less than $4,000 for a biweekly pay period, including salaried workers earning less than $104,000 per year.

When determining whether suspend collection of eligible employees’ Social Security payroll taxes, here are a few things that employers must consider:

As a tax deferral, the Social Security payroll tax obligations are not eliminated; they are merely delayed. Employees would need to repay the deferred payroll taxes during the first four months of 2021. And the responsibility falls on the employers to ensure that the previously deferred payroll taxes are collected from workers’ paychecks. Some employees may not understand that the payroll tax suspension is not permanent and requires future repayment. If employers do not return the previously deferred tax amounts to the IRS by April 30, 2021, penalties and interest will begin to accrue on tax amounts that have not been repaid.

Therefore, if a company does indeed decide to defer some of its employee’s payroll taxes, it would be wise for the employer to create an agreement with employees acknowledging that the deferral is short-term and that they will pay the money back beginning 2021, even if they leave the company.  

Even if an employee requests the payroll tax deferral, the employer is not required to provide deferral. It is up to the employer to determine whether to provide the relief, but they are not obligated to do so. If, however, an employer does decide to offer temporary tax suspension, the employer may want to provide employees with an opt-in or opt-out option, as some may choose not to defer a portion of their taxes.

Since the deferral period ends at the end of 2020, employers should decide soon if they want to offer the option to their employees. There a number of considerations that may go into an employers’ decision, such as working with vendors to make payroll system changes and budgeting for the repayment of taxes in the event collection from employees is not possible. Employers do not need to decide right away if they want to implement the program, but they should not wait too long. The deferral only lasts until the end of the year and taxes are not retroactive, meaning that employers cannot adjust payrolls processed in the past. For example, if an employer begins the deferral in October, they cannot refund employees for amounts that were deducted for Social Security taxes in September.

All in all, whether an employer decides to offer the deferral to its employees, the employer should monitor for additional guidance from Treasury, the IRS, and legislative bodies. There have been discussions of forgiving the deferral, but, ultimately, only time will tell.

Successful talent retention programs come in all shapes and sizes. From implementing cultural assessment tests to offering unlimited paid time off (PTO), many companies go to great lengths to figure out winning formulas for increased retention.

They often use the phrase “employee engagement” to describe what they are trying to achieve. However, what does it mean to be truly “engaged?”

According to a study published by the Deloitte Review, Becoming Irresistible, “retention and engagement” have become the second most important challenge on the minds of business leaders. Employers want to increase retention and engagement, however often struggle to execute a successful plan.

Many in the HR community advocate for cultural and personality assessment tests. The idea behind such tests is that they will help companies to not only hire people who are a good cultural fit in the workplace, but will also help to place people in the right positions depending on their personality and skill set. While assessment tools may work in the short term, the main flaw with this strategy is that it still does not account for better ways to engage employees – they do not address the ongoing solutions that will ultimately drive and maintain employee engagement.

Employee engagement needs to be a continuous demonstration of open communication and follow-through prompted by an employer. The Deloitte study challenges organizations to think about what engagement really means for their organization and how to hold their leaders accountable. After two years of research, they concluded that employee engagement is driven by five major elements:

  • Meaningful Work
  • Hands-on Management
  • Positive Work Environments
  • Growth Opportunities
  • Trust in Leadership

They even went as far as to narrow down to the 20 underlying strategies that influence each of these five drivers, one of which includes implementing a culture of recognition. They reported that “high recognition companies have 31% lower voluntary turnover than companies with poor recognition cultures.” Some other factors include empowering teams by keeping them small, providing transparent goals, offering flexible work environments, and providing training and support on the job.

Taking a Unique Approach

Have you ever had a Clif Bar? The California-based company, which started in the kitchen of their Founder, Gary Erickson, is now a multi-million dollar business with an astonishing 97% retention rate. Clif Bar & Company believes “leadership must walk the walk.” In an effort to demonstrate their ongoing commitment to this belief, they built a state of the art gym onsite and employees are encouraged to use it as often as possible. Employees are paid up to two hours per week to work out in this gym. Clif’s CEO, Kevin Cleary, has a strategically-placed office near this gym. He’s not there to discourage use. He’s there to make sure employees are utilizing this benefit and putting their health first. Often times, Mr. Cleary can be found in the gym putting in his daily workouts alongside the other employees. This public demonstration of making health a priority sets the tone for his employees, “If it’s important to my leaders, it should be important to me, too.”

What works for Clif Bar & Company may not necessarily work for your organization. The idea is to determine first what drives employee engagement in your culture and then to implement programs and activities that reinforce that specific driver. Keep in mind that leadership support and engagement will play a major role in the success of any employee engagement program.

With so many products and services now claiming to help organizations improve culture and meet retention goals, it can be hard to distinguish viable choices when companies seek to enact such changes. While some plans may feel like an “easy” solution, taking the time to honestly assess your culture will be more rewarding for you, your team, and the entire organization in the long run.

How to Use this Information

As a national provider of executive recruitment services, Executives Unlimited has exposure and insight to some of the top performing employee engagement strategies. In addition to helping you recruit your next executive, we can help you transform the way you retain talent. Call us at (866) 957-4466 or contact us online today.

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Most hope that COVID-19 won’t hit close to home or work. But what do you do if an employee tests positive for the virus?

On May 19, 2020, the Occupational Health and Safety Administration (“OSHA”) issued new guidance on COVID-19 recordkeeping requirements for employers. OSHA clarified that COVID-19, indeed, is a recordable respiratory illness—but whether you have to report it to OSHA depends.

When are you responsible for reporting COVID-19 cases to OSHA?

In general, you are responsible for reporting cases of COVID-19 if your employee’s case meets all of the following:

  • The individual has a confirmed case of COVID-19
  • The case is work-related (see more info on this in the chart below)
  • The case results in any of the following: death, days away from work, restricted work, medical treatment beyond first aid, loss of consciousness, orsignificant injury.

Are all employers responsible for reporting cases of COVID-19?  

You are exempt from this reporting requirement if your business either:

  • Employs 10 or fewer employees
  • Is a Low-hazard industry employer (this link lists OSHA’s definition of “low-hazard employers” in Appendix A).

Even if your business falls into one of these categories, you should still monitor any workplace COVID-19 cases, especially if you discover that the illness fits OSHA’s definition of “work-related”.

If any work-related COVID-19 illness results in a fatality or patient hospitalization – regardless of the above exemptions – you must record the illness with OSHA. Work-related fatalities must be reported to OSHA within 8 hours, and hospitalizations must be reported within 24 hours.

When do you classify a COVID-19 illness as work-related?

OSHA has given the employer considerable discretion in determining whether a COVID-19 case is work-related. But it has issued some guidelines for employers to consider.

Reasonable investigation

After you learn that an employee has tested positive for COVID-19, you should conduct an inquiry into the illness. You need not undertake extensive medical inquiries and should be mindful of your employee’s privacy. OSHA has outlined an acceptable method of investigation:

  • Ask the employee how they believe they contracted COVID-19.
  • Discuss with the employee possible activities – both work and out-of-work – that may have led to the illness.
  • Review the employee’s work environment, especially if there are other instances of workers who tested positive in the same environment.

Evidence of work-relatedness

The determination of work-relatedness should be grounded in any reasonable evidence that is available to you at the time of the inquiry. OSHA has provided some insight on what it considers strong evidence in favor for or against work-relatedness determinations.

What if you are still unsure about the work­-relatedness classification?

OSHA has noted the difficulty of determining whether a COVID-19 case is work-related. To that end, if, after your good faith inquiry, you cannot determine whether it is more likely than not that the workplace caused the COVID-19 case, you need not report the case. And if you do, in the words of OSHA itself, be assured that recording a COVID-19 illness “does not, of itself, mean that the employer has violated any OSHA standard.”

The purpose of the recordkeeping guidelines is to help you respond appropriately to any COVID-19 cases. Even if an employee contracts COVID-19, if you use the steps outlined above to conduct a thorough work-relatedness inquiry and record the process, you effectively minimize your risk of violating OSHA standards and you better protect your workers. An OSHA reporting tutorial can be found at:

To download and print our easy-to-follow guid on how/when to report COVID-19 cases to OSHA, click the button below.


An important and unexpected ruling was handed down by the Court of Justice of the European Union (CJEU) on July 16, 2020, in Data Protection Commissioner v Facebook Ireland Ltd and Maximillian Schrems (“Schrems II”) that invalidates the EU-U.S. Privacy Shield (“Privacy Shield”) arrangement. Since 2016, the Privacy Shield provided U.S. companies with a mechanism to comply with the General Data Protection Regulation (GDPR) requirements when transferring personal data from the European Union to the U.S.

What this means

Now companies that subscribed to the Privacy Shield must find another GDPR-compliant solution for the transfer of data. The European Data Protection Board indicated in its July 23, 2020 FAQs that it will not be providing a grace period as the authorities had done for the EU-U.S. Safe Harbor (“Safe Harbor”) framework following the “Schrems I” decision.

Notably, the CJEU’s decision expressly stated that the standard contractual clauses (SCCs) previously promulgated by the European Commission (EC) are still a valid tool for data transfers from the EU. The SCCs are sets of contractual terms and conditions that the controller and the processor of personal data both execute to comply with GDPR’s requirements.  However, the CJEU’s decision does not give blanket approval to the SCCs–the decision acknowledged that future challenges to SCCs are permissible by the local data enforcement agency for any EU-member state. For example, an EU-member state might prohibit or suspend exports of personal data from its country under SCCs, if the member state concludes that the SCCs are not or cannot be complied with in the recipient third country (such as the U.S.) because of the member state’s local legal requirements.

For some situations, including online companies dealing directly with EU consumers, another alternative is to look to specific derogations under Article 49 of the GDPR, such as to perform a contract.

What happens next

When the adequacy of the Safe Harbor was invalidated by the CJEU in 2015, the U.S. Department of Commerce (DOC) and the EC had already been negotiating for an updated trans-Atlantic program for many months. With Schrems II, and although the DOC and EC have indicated that lines of communication are open, the discussions are not nearly as advanced. And the issues cited by the CJEU in Schrems II may require some form of legislative and not merely an administrative action to address. As such, the process to update the Privacy Shield is unlikely to be concluded any time soon.  

The DOC, in a press release in response to the CJEU’s decision, stated that it will continue to administer the Privacy Shield program, including processing submissions for self-certification and re-certification and maintaining the participants’ list. The statement emphasized that the CJEU’s decision “does not relieve participating organizations of their Privacy Shield obligations.”

The UK’s Data Enforcement Agency also issued a statement advising companies to continue using the Privacy Shield until new guidance becomes available but added that companies “do not start using the Privacy Shield during this period.”

Stay tuned for more regulatory guidance and other developments in the next few weeks.

Disclaimer: This is not legal advice. The resources and information provided here are for educational purposes only. Consult your own counsel if you have legal questions related to your specific practices and compliance with applicable laws.