Quick Links to Articles for January 8, 2021

Voluntary Paid Leave Payroll Tax Credit Available Through March 31, 2021

Reminder: FMCSA Drug and Alcohol Clearinghouse Registration Portal Experiencing Technical Difficulties

Compliance Bulletin: Mandatory Annual OSHA Workplace Injury and Illness Posting Begins February 1st 

DOL Releases Final Rule to Clarify Worker Status Under the FLSA

New EPA Rule Limits Scientific Data Used to Justify More Stringent Regulations

Congressional Update 

EMA Corporate Bronze Partner Spotlight Introducing: Northwest Pump

December 2020 EMA Small Business Committee (SBC) PAC Contributions

Federated Insurance Risk Management Academy Webinar

December 2020 Contributors to EMA MDF

Federated Insurance Employment Practices Network HR Question of the Month

EMA Member Services Spotlight Featuring: Office Depot and Office Max through NPP

The Energy Marketers of America (EMA) is saddened by the unfortunate events that took place at our nation’s capital on Wednesday. Acts of violence and threats to our democracy is completely unacceptable and should not be tolerated. EMA hopes for a peaceful transfer of power pursuant to the Constitution on January 20th. We look forward to working with the new Administration on issues important to energy marketers.

Beginning April 1, 2020, the Families First Coronavirus Relief Act (FFCRA) required employers to pay sick leave and expanded medical and family leave to employees affected by the coronavirus. The mandate applied to companies with fewer than 500 employees and included partial exemptions for small companies with fewer than 50 employees. The FFCRA paid leave mandate ended on December 31, 2020. Employers are no longer required to provide paid sick leave and expanded family and medical leave. However, Section 286 of the Relief Bill ("Extension of Credits for Paid Sick and Family Leave") allows employers to take a payroll tax credit for providing FFCRA leave into the first quarter of 2021 for two purposes: 

• To recover costs for providing mandatory FFCRA leave in 2020 - If an employee took FFCRA-required leave in 2020, then the employer can take the appropriate tax credits in 2021; and 

• To recover costs providing voluntarily FFCRA Leave in Q1 of 2021 - If an employer elects, voluntarily, to provide paid leave to an employee for an FFCRA-qualifying reason in Q1 of 2021, then it can take payroll tax credits for providing such leave.

Employers who choose to voluntarily provide FFCRA leave between January 1, 2021, and March 31, 2021, and seek the tax credits, must keep accurate records and comply with limits on paid leave imposed under the original FFCRA. Those paid leave limitations (80 hours of emergency paid sick leave and twelve weeks of paid emergency family and medical leave) roll over to the period from January 1, 2021 through March 31, 2021 during which voluntary payments of FFCRA leave qualify for the tax credit. In other words, there is no new “bank” of FFCRA paid leave available to an employee during the voluntary extension period ending March 31, 2020. The payroll tax credit only applies to payments made for FFCRA benefits that the employee has left over after December 31, 2020. Employers will not receive tax credits for benefits provided in excess of statutory limits.

The amount of employee FFCRA leave eligibility subject to the tax credit also depends on which 12-month period an employer uses for the purpose of measuring availability of leave (calendar year, fiscal year, a 12-month period measured forward from use of FFCRA leave, or a rolling 12-month period measured backward from use of FFCRA leave).

EMA will provide additional information once the IRS publishes guidance on the tax credit. In the meantime, employers who choose to provide voluntary FFCRA payments should consult their accountant or tax preparation professional. 

EMA Staff Contact: Mark S. Morgan Regulatory Counsel mmorgan@emamerica.org (703) 281-6600.

The Federal Motor Carrier Safety Administration (FMCSA) requires employers with CDL drivers to register with and use the agency’s Drug and Alcohol Clearinghouse to report, search and manage driver drug and alcohol records. 

The deadline to sign up for the Clearinghouse: That means motor carriers or consortia/third party administrators must register with and check the Clearinghouse no later than January 5, 2021 to conduct the mandatory annual drug and alcohol record check for drivers employed as of January 6, 2020. 

A number of marketers attempting to register online with the Clearinghouse over the past several weeks have been unsuccessful. In addition, the Clearinghouse hotline is not taking any calls. EMA brought the registration difficulties to the attention of the FMCSA and is seeking guidance on potential liability for noncompliance for those who have been unable to register thus far. 

EMA is awaiting feedback from the FMCSA on these issues and will report further when new information is available. In the meantime, continue efforts to register as the backlog of registrations are dealt with and the site is back up and running. 

EMA Staff Contact: Mark S. Morgan Regulatory Counsel mmorgan@emamerica.org (703) 281-6600.

The 2020 posting cycle for OSHA’s workplace injury and illness reporting rule begins on February 1, 2021 and runs through April 30, 2021. The OSHA injury and illness recording and posting requirements apply to most establishments (workplaces) with more than 10 employees. OSHA requires employers to record and post all work-related injuries occurring during the previous calendar year. 

Please click here to see the following list which identifies petroleum marketing establishments that must comply with OSHA injury and illness reporting and recordkeeping.

On Wednesday, the Department of Labor (DOL) announced a final rule clarifying the standard for employee versus independent contractor under the Fair Labor Standards Act (FLSA). The effective date of the final rule is March 8, 2021.

Independent contractors are not entitled to the federal minimum wage and overtime pay that covered employees receive under the FLSA. 

According to the DOL Wage and Hour Division, the final rule: 

• Reaffirms an “economic reality” test to determine whether an individual is in business for him or herself (independent contractor) or is economically dependent on a potential employer for work (FLSA employee).

• Identifies and explains two “core factors” that are most probative to the question of whether a worker is economically dependent on someone else’s business or is in business for him or herself:

  • The nature and degree of control over the work.

  • The worker’s opportunity for profit or loss based on initiative and/or investment.

• Identifies three other factors that may serve as additional guideposts in the analysis, particularly when the two core factors do not point to the same classification. The factors are:

  • The amount of skill required for the work.

  • The degree of permanence of the working relationship between the worker and the potential employer.

  • Whether the work is part of an integrated unit of production.

• The actual practice of the worker and the potential employer is more relevant than what may be contractually or theoretically possible.

• Provides six fact-specific examples applying the factors.

This “midnight” rule could be frozen from taking effect in a memo on Inauguration Day by the incoming Administration. If so, the DOL could allow the rule to take effect, at least temporarily, or rely on an outside party to challenge it in court. The Department could also reopen the rulemaking.

The Small Business Legislative Council (SBLC), of which the Energy Marketers of America (EMA) is a contributing board member, plans to release a more detailed outline of the rule next week, and EMA will include the SBLC report in next weeks’ Weekly Review.

The Environmental Protection Agency (EPA) has finalized a rule to limit what research it can use to craft public health protections. The “Strengthening Transparency in Pivotal Science Underlying Significant Regulatory Actions and Influential Scientific Information” rule would require researchers to disclose the raw data involved in their public health studies before the agency could rely upon their conclusions. It will apply this new set of standards to “dose-response studies,” which evaluate how much a person’s exposure to a substance increases the risk of harm. 

The final rule will make it more difficult for the EPA to use dubious science to justify more stringent pollution control regulations. However, researchers and academic organizations argue that the criteria will actually restrict the EPA from using some of the most consequential research on human subjects because it often includes confidential medical records and other proprietary data that cannot be released because of privacy concerns.

The 117th Congress began on January 3, followed by Democratic victories in the January 5 Georgia Senate runoffs. Democrats will control the White House, Senate, and House for the first time since 2011. The 50-50 Senate makeup, with Vice President-elect Kamala Harris casting tie-breaking votes, means that neither party will be able to afford defections. Moderates such as Sens. Joe Manchin (D-WV), Lisa Murkowski (R-AK), Susan Collins (R-ME), and Mitt Romney (R-UT) could be determinative on key issues, including the filibuster and all legislation requiring bipartisan support. Congress will be largely dormant through inauguration, with the Senate not expected to begin introducing bills until January 21. The Senate has yet to finalize Committee makeup, but Committee leadership has been agreed: Sen. Joe Manchin (D-WV) will chair the Energy and Natural Resources Committee, and Sen. Tom Carper (D-DE) will chair the Environment and Public Works Committee.

Meanwhile, the House of Representatives passed the Rules package (H.R. 8), which establishes House rules and procedures for the 117th Congress earlier this week. Included in the package are amendments to the standing rules of the 116th Congress, as well as “separate orders,” which are procedural rules specific to the 117th Congress. While many of the separate orders address Congressional logistic issues created by the ongoing pandemic, a new provision creates an exemption from deficit controls for legislation related to the coronavirus pandemic or climate change. In other words, the Budget Committee chair can declare legislation related to the pandemic and climate change as without cost, meaning those bills would not be in violation of the PAYGO rule – the rule that prevents new legislation from adding to the federal deficit or detracting from the surplus, unless the cost is offset elsewhere in some manner. The new exemptions are so broad that it is possible they could decrease the overall budget impacts of a future infrastructure package, specifically related to new spending and tax incentives for clean energy programs and financing, water and wastewater infrastructure, and more. 

EMA Officers, Executive Committee, and staff are pleased to welcome EMA’s newest Corporate Bronze Partner: Northwest Pump.

Northwest Pump, a 61-year old distributor of petroleum and industrial parts, has decided it is time to go full digital. NWP recently purchased Petrostuff, an online petroleum sales platform that sold items such as nozzles, breakaways, swivels, pumps and more. Petrostuff has been around since 2010 and has made great strides in the ecommerce world for the petroleum industry.

Northwest Pump now has two online platforms. The first is for current, or B2B customers, allowing them to login and access the entire NWP product line up which includes thousands of items and 30-day terms. The second, the newly purchased platform, is for B2C customers who are looking for an easy way to buy petroleum and industrial products online without the hassle of setting up an account or being a NWP customer. 

The new online platform is located on the NWP website at shop.nwpump.com.  Customers can either check out as a guest or create an account so they can track all their recent purchases. For all B2B help, consumers can email esales@nwpump.com.

To read the article in its entirety, please click here. To learn more on Northwest Pump or the new online sales platform, email or call 877.567.3876. 

PAC Co-Chairs Brad Bell and Tim Keigher are grateful for the Energy Marketers of America Small Business Committee (SBC) PAC contributions from the following individuals during the December 1-31, 2020 time frame:

Connecticut: Peter Aziz, Sharon Peterson
Hawaii: Roger Dang, Robert Fung, Russell Goya, Kimo Haynes, Robert Hood, Annie Marszal, Paul Oliveira, Mike Rossman, Steve Wetter, Eric Wright
Illinois: Joshua Sharp, Brenda Zeck
Iowa: Glenn Hasken
Kansas: Wanda McAnany
Maine: Michael Estes
Michigan: Shane Applebee, Robert Cleary, Daniel Coyne, David Coyne, Kelsey Coyne, Mark Griffin, Craig Marzke, Dennis McCarthy, Frederick Miller
Minnesota: Chris Bame, Wade Carlson, Barbara Chale, Debora Gappa, Mary Gilmore, Francis Graves, Tim Gross, Jeanne Hovland, Donnell Kelley, Vern Kelley, Gerald Kruas, Kirsten Libby, David Rohn, Craig Rossman, Josh Severson, Brent Staples, James Taglia, Ryan Tonsleldt, Holly Werner, Michael Wiebolt, Glenn Winter
Mississippi: Philip Chamblee
Montana: Dirk Nathan Cooper, Greg Cross, Dallas Herron, Douglas McCracken, Kary Tonjum
Nevada: Craig Allison, Nader Arabshahi, Jeremy Bautista, Ren Vevell, Brett Bottenberg, Kyle Call, David Campbell, Dennis Campo, Christi Carano Case, Bill Cawley, Kathy Chadey, Steve Clark, David Crawford, Michael DeMark, Shawn Herrick, Gene Inglesby, Chris Kemper, Peter Krueger, Kathy Laderman, Mark Lytle, Joe McGinley, John Moak, Bryan Reed, Steve Schafer, Carter Shaw, Keith Stewart, Steve Yarborough 
New Jersey: Edmund Anyzek, Clinton Crane
New Mexico: Benny Hodges
North Carolina: Timothy Scott Aman, Thomas Berry, Brian Campbell, Dallas McQueen Campbell Jr., Charles Cox, Louis Cox, Wendy Fisher, Harry Foy Jr., James Michael Harrell, Hayes Holmes, Doug Howey, Chris Neal, Audrey Shearin, Ricky Thomas, Anthony Waddell, John Hall Waddell
North Dakota: Mary Rud
Pennsylvania: John Reilly
South Carolina: Mack Beaty, Sam Bell
Tennessee: Tommy Hunt, Emily LeRoy
Texas: Brian Ashburn, Rob Underwood 
Virginia: Lewis Wall Jr.  

Each year, OSHA releases a summary of their list of Top Ten workplace safety violations. This webinar will take a look at OSHA’s Top Ten violations in 2020. More importantly, however, we will focus on risk management policies, procedures, and training resources to implement and help reduce employee accidents and injuries! 

What you will learn: 

• Quick overview of the OSHA Top Ten violations for 2020

• Training resources, programs and policies to implement in your business

• How to positively impact workplace productivity and culture through accident prevention

Advanced registration is required for this 45-minute webinar.

For additional information or to discuss this in further detail, please contact your Federatedregional representative or EMA’s National Account Executive Jon Medo at 800.533.0472. Federated is a EMA Corporate Platinum Partner. 

Energy Marketers of America’s Marketer Defense Fund wants to thank the following individuals for their contributions during the December 1- 31 timeframe:

Georgia: Tommy Thompson
Indiana: Trout Moser
Kansas: Dennis McAnany
Michigan: James O’Connor
New Jersey: Susan Hammond
Pennsylvania: Robert Aerni
South Carolina: Richard Mixson

Corporate donations are acceptable. MDF funds have been used to create a COVID-19 Situational Update & Resources webpage, to hire experts to cover important regulatory agencies and disaster relief dedicated to strengthening our lobbying efforts on Capitol Hill. Click here to donate to the EMA MDF. 

Federated Insurance’s HR Question of the Month focuses on employment-related practices liability issues. This month’s question is: We have an employee who is on leave under the Family and Medical Leave Act (FMLA). No performance deficiencies had been addressed with the employee prior to FMLA leave, but multiple issues were found after she started leave. Can we address them right out of the gate when she returns? Also, our level of business has slowed down due to COVID-19. Does that figure into the equation anywhere?Please click here to read the response.

For additional information or to discuss this in further detail, please contact your Federatedregional representative or EMA’s National Account Executive Jon Medo at 800.533.0472. Federated is a EMA Corporate Platinum Partner. 

This article is for general information and risk prevention only and should not be considered legal or other expert advice. The recommendations herein may help reduce, but are not guaranteed to eliminate, any or all risk of loss. The information herein may be subject to, and is not a substitute for, any laws or regulations that may apply. Qualified counsel should be sought with questions specific to your circumstances. © 2021 Federated Mutual Insurance Company. 

Office Depot and National Purchasing Partners (NPP) can help you save money on janitorial and cleaning supplies. Whether you’re looking to switch to disinfecting hand soap or you want to stock up on all-purpose cleaners, Office Depot and OfficeMax can help you get the job done. Click here for pricing on a variety of PPE items offered. EMA members save money with NPP discounts and free shipping. Certain items are even available for store pickup if your need is immediate. 

Additionally, members who enroll with NPP can get discounted pricing on products, such as office supplies, furniture, technology, janitorial and breakroom supplies, both in-store and on-line. Explore NPP’s diverse catalog of business and employee offers. 

To access Office Depot and OfficeMax discounts through NPP, enroll your business for FREE here. There is no obligation to purchase. NPP is a member benefit provider of EMA.

Restrictions may apply. Subject to availability.