Employment Law Updates: January 2021

Federal Law Updates: January 2021

Ten Federal along with D.C and three State Law Updates have been issued.  Our HR Advisors are versed and ready to answer your toughest HR questions to help your company through working remotely, coming back to work and all year long.

January 2021 Law Alert Map

Labor Law Updates for January 2021

1

CDC COVID-19 Workplace Testing Guidelines Emphasize Consent and Disclosure

The CDC updated guidance on COVID-19 Workplace testing.

On January 21, 2021, the Centers for Disease Control (CDC) updated its guidance on COVID-19 workplace testing. The guidance emphasizes that workplace-based testing should not be conducted without employees informed consent so they understand the testing process and may act independently to make choices that align with their values, goals, and preferences.

The guidance details the disclosures that an employer must provide to its employees, for instance:

  • Test manufacturer, name, purpose, and type.
  • How the test will be performed.
  • Known and potential risks of harm, discomforts, and benefits of the test.
  • What a positive or negative test result means, including: 
    • Test reliability and limitations; and
    • Public health guidance to isolate or quarantine at home, if applicable.

The guidance also addresses topics employers should be prepared to discuss with their employees, such as test scheduling and payment, testing sites, communication and interpretation of results, employee privacy, and how to get assistance.

The CDC also provides a SARS-CoV-2 Testing Strategy: Considerations for Non-Healthcare Workplaces website, updated October 21, 2020, which identifies additional, important disclosures that employers should give to employees contemplating testing.

2

DOL Opinion Letters Addressing FLSA Exemptions and Worker Classification

The DOL released a new opinion letter addressing FLSA compliance.

On January 19, 2021, the U.S. Department of Labor released the following new opinion letters addressing Fair Labor Standards Act (FLSA) compliance:

  • FLSA2021-6: Addressing whether the FLSA’s “retail or service establishment” exemption applies to staffing firms that recruit, hire, and place employees on assignments with clients. 
  • FLSA2021-7: Addressing whether certain local small-town and community news source journalists are creative or learned professionals under Section 13(a)(1) of the FLSA. 
  • FLSA2021-8: Addressing whether certain distributors of a manufacturer’s food products are employees or independent contractors under the FLSA. 

FLSA2021-9: Addressing whether requiring tractor-trailer truck drivers to implement legally required safety measures creates control by the motor carrier for worker classification (employee or independent contractor) under the FLSA and whether certain owner-operators are correctly classified as independent contractors.

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3

DOL Releases Opinion Letters for Two FLSA Topics: Tipped Workers and Establishment Workers

The DOL released an opinion letter regarding two FLSA topics.

On January 15, 2021, the U.S. Department of Labor released the following Fair Labor Standards Act (FLSA) opinion letters:

  • FLSA 2021-5: This letter provided a step-by-step calculation of overtime pay under the FLSA when a tipped employee works as a server and bartender, receives tips, and also receives automatic gratuities or service charges.
  • FLSA 2021-4: This letter found that a restaurant can implement a nontraditional tip pool under the FLSA’s new regulatory changes, not yet effective but set to be soon, so long as it does not include any managers or supervisors, the employer does not take a tip credit, and it pays the full minimum wage to both the tipped employees (servers) who contribute to the pool and the non-tipped employees (hosts or hostesses) who receive tips from the pool. A nontraditional tip pool includes both tipped employees and non-tipped employees.

FLSA 2021-3: This letter assessed three different entities and whether they satisfy the FLSA’s establishment requirement, which provides an exemption from minimum wage and overtime provisions for workers of an amusement or recreational establishment, and whether an accrual method of accounting may be used to satisfy the FLSA’s Receipts Test.

4

EEOC and Religious Discrimination Clarifications

The EEOC approved revisions to its Compliance Manual Section on Religious Discrimination.

On January 15, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) approved revisions to its Compliance Manual Section on Religious Discrimination. The updated guidance describes how Title VII of the Civil Rights Act of 1964 protects against religious discrimination in the workplace and details legal protections available to religious employers. Importantly, the EEOC states that “the manual does not have the force and effect of law and is not meant to bind the public in any way. It is intended to provide clarity to the public on existing requirements under the law and how the EEOC will analyze these matters in performing its duties.”

5

Replacement Sticker Extending Permanent Resident Card (Green Card) Validity and Form I-9

The USCIS announces it is replacing the current sticker extending the validity of a Form I-551, PRC or Green Card.

On January 12, 2021, the U.S. Citizenship and Immigration Services (USCIS) announced that it is replacing the currently issued sticker that extends the validity of a Form I-551, Permanent Resident Card (PRC), or Green Card, with a revised Form I-797, Notice of Action, receipt notice of Form I-90, Application to Replace Permanent Resident Card. The revised notice will extend the validity of a PRC for 12 months from the “Card Expires” date on the front of the PRC. This change ensures that certain lawful permanent residents have documentation for completing Form I-9, Employment Eligibility Verification.

Employees may present their expired PRC together with this notice as an acceptable List A document that establishes identity and employment authorization for Form I-9 purposes. When completing a Form I-9, employers should enter the information from this document combination in Section 2, under List A:

  • In the Document Number field, enter the card number provided on the expired PRC. 
  • In the Expiration Date field, enter the date that is 12 months from the “Card Expires” date on the expired PRC.
  • In the Additional Information box, write “PRC Ext” and the I-90 receipt number from the Form I-797.

Employers who retain copies of documents should retain copies of both the PRC and Form I-797 with the employee’s Form I-9. Employers may not reverify Lawful Permanent Residents who present this document combination.

Read more about acceptable documents at I-9 Central or in The Handbook for Employers, Guidance for Completing Form I-9.

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6

FLSA Opinion Letters: Administrative Employee Exemption and Ministerial Exception

The U.S. DOL announces new opinion letter related to the FLSA.

On January 8, 2021, the U.S. Department of Labor announced the following new opinion letters that provide compliance assistance related to the federal Fair Labor Standards Act (FLSA): 

  • FLSA2021-1: Addressing whether account managers at a life science products manufacturer qualify for the administrative employee exemption under the FLSA. The DOL concluded that the account managers were administrative employees because they met all three requirements, discussed thoroughly in the letter, necessary to qualify for the exemption (from the FLSA minimum wage and overtime pay requirements).

FLSA2021-2: Addressing whether the ministerial exception allows a private religious daycare and preschool to pay its teachers on a salary basis that would not otherwise conform with the requirements of the FLSA. The DOL concluded that the exception would allow the school to do so if the teachers qualify as ministers.

7

OSHA Penalty Amount Increases

The U.S. DOL announces adjustments to the OSHA.

On January 8, 2021, the U.S. Department of Labor announced the following 2021 adjustments to the Occupational Safety and Health Administration (OSHA) civil penalty amounts:

  • Serious violations: minimum of $964 per violation and maximum of $13,653 per violation.
  • Other-than-serious violations: minimum of $0 per violation and maximum of $13,653 per violation.
  • Willful or repeated violations: minimum of $9,639 per violation and maximum of $136,532 per violation.
  • Posting requirements violations: minimum of $0 per violation and maximum of $13,653 per violation.
  • Failure to abate violation: $13,653 per day unabated beyond the abatement date, which is generally limited to 30 days maximum.

These increases apply to penalties assessed after January 15, 2021.

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8

Final Rule Clarifies Independent Contractor Status under the Fair Labor Standards Act

DOL announces a final rule clarifying employee vs. independent contractor under the FLSA.

On January 6, 2021, the U.S. Department of Labor, Wage and Hour Division announced a final rule clarifying whether an individual is an employee or an independent contractor under the Fair Labor Standards Act (FLSA). The rule:

  • Reaffirms the “economic reality” test  which determines whether an individual is in business for themselves (independent contractor) or is economically dependent on a potential employer for work (FLSA employee). 
  • Identifies and explains two core factors to determine whether a worker is economically dependent on someone else’s business (employee) or is in business for themselves (independent contractor): 
    • The nature and degree of control over the work; and
    • The worker’s opportunity for profit or loss based on initiative and/or investment.

If those two primary core factors do not point to the same classification, then the rule identifies the following additional factors to determine status:

  • The amount of skill required for the work;
  • The degree of permanence of the working relationship between the worker and the potential employer; and
  • Whether the work is part of an integrated unit of production.

The rule also:

  • Identifies that 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.

The rule is effective March 8, 2021.  

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9

COVID-19 Relief for Employers Using the Automobile Lease Valuation Rule

DOL announces a final rule clarifying employee vs. independent contractor under the FLSA.

On January 4, 2021, the Internal Revenue Service released Notice 2021-07 which provides temporary relief in response to the ongoing COVID-19 pandemic for employers using the automobile lease valuation rule to value an employee’s personal use of an employer-provided automobile for:

  • Income inclusion;
  • Employment tax; and
  • Reporting.

Due solely to the COVID-19 pandemic, if certain requirements are satisfied, employers and employees using the automobile lease valuation rule to determine the value of an employee’s personal use of an employer-provided automobile may instead use the vehicle cents-per-mile valuation rule beginning March 13, 2020.

10

2021 IRS Forms

New publications and forms released by the IRS.

On December 31, 2020 and January 5, 2021, the federal Internal Revenue Service released the following new forms and publications, among many others, for use in 2021:

  • Form W-4 – Employee’s Withholding Certificate
  • Form W-4P – Withholding Certificate for Pension or Annuity Payments
  • Publication 531 – Reporting Tip Income

Individual state labor laws

State Specific Labor Law Updates:

Compliance can weigh down even the most experienced professionals. Our HR Advisors, one click compliance Handbook ,Compliance Database, HR Tools and Employee Training are ready to help navigate HR all year long. Everything included with your AllMyHR™ Solutions

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Employment Law Updates: December 2020

Federal Law Updates: December 2020

Five Federal along with D.C and seven State Law Updates have been issued.  Our HR Advisors are versed and ready to answer your toughest HR questions to help your company through working remotely, coming back to work and all year long.

December 2020 Law Alert Map

Labor Law Updates for December 2020

1

Pandemic Relief

President Trump signs the 2021 Consolidated Appropriations Act applicable to COVID-19 or another coronavirus with pandemic potential.

On December 27, 2020, President Donald Trump signed the 2021 Consolidated Appropriations Act (US H 133) containing the 2021 Coronavirus Response and Relief Supplemental Appropriations Act applicable to SARS-CoV-2 (COVID-19) or another coronavirus with pandemic potential. Generally, the act:

  • Extends some Coronavirus Aid, Relief, and Economic Security Act (CARES Act) economic assistance. For instance: 
    • Reinstatement of Federal Pandemic Unemployment Compensation (FPUC) in the amount of $300 for weeks of unemployment beginning after December 26, 2020 through March 14, 2021.
    • Extension and modification of temporary Pandemic Unemployment Assistance (PUA) through March 14, 2021 and phasing out on April 5, 2021. The phasing out is for those individuals who remain eligible after March 14, 2021 and have not exhausted their maximum benefits entitlement. However, under the act, no PUA benefits can be paid after April 5.
    • Extension of employee retention tax credit to wages paid before July 1, 2021.
    • Expansion and continuation of the Paycheck Protection Program (PPP).
  • Allows employers to continue taking tax credits for qualifying paid sick and family leave under the Federal Families First Coronavirus Response Act (FFCRA) through March 14, 2021. However, beginning January 1, 2021, employers are not required to provide employees with paid FFCRA leave.

Specific to the FFCRA:

  • Beginning January 1, 2021, employers are not required to provide employees with paid FFCRA leave, which includes both COVID-related emergency paid sick leave (EPSL) and emergency family and medical leave (EFMLA). However, employees may still be entitled to paid sick leave or emergency COVID leave under state or local law.
  • For employers that voluntarily provide paid sick and family and medical leave that would have otherwise qualified as FFCRA leave: 
    • Federal payroll tax credits are extended through March 31, 2021 (if the individual did not exhaust their maximum FFCRA leave allotment and the leave did not expire on December 31, 2020).
    • Employees do not get a new bank of FFCRA hours in 2021 – the amount they have available on January 1, 2021 is how much they can use through March 31, 2021. There is a possible exception if employers use the calendar year or another fixed FMLA tracking period that starts before March 31, 2021.

The IRS and DOL will soon provide more information and detailed guidance on the act’s implementation.

2

IRS Issues 2021 Standard Mileage Rates

The IRS released the 2021 optional standard mileage rates.

On December 22, 2020, the Internal Revenue Service released Notice 2021-02 with the 2021 optional standard mileage rates for taxpayers to use to calculate the deductible costs of operating an automobile for business, charitable, medical, or moving purpose. Beginning on January 1, 2021, the standard mileage rates for the use of a car (also vans, pickups, or panel trucks) will be:

  • 56 cents per mile driven for business use;
  • 16 cents per mile driven for medical, or moving purposes for qualified active duty members of the Armed Forces; and
  • 14 cents per mile driven in service of charitable organizations, which is unchanged from 2020.

The notice also provides that:

  • The maximum standard automobile cost to compute the allowance under a fixed and variable rate plan (FAVR plan) may not exceed $51,100 for automobiles (including trucks and vans)l; and
  • The maximum fair market value of employer-provided automobiles for the fleet-average valuation rule and the vehicle cents-per-mile valuation rule (including trucks and vans) first made available to employees in calendar year 2021 is $51,100.

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3

EEOC COVID-19 Guidance and Vaccines

U.S. EEOC updated its “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws”.

On December 16, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) updated its “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Lawspublication by including:

  • A new section for employers and employees about how a COVID-19 vaccination interacts with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and the Genetic Information Nondiscrimination Act (GINA).
  • Information about medical pre-screening questions and employer accommodations for those unable to receive a vaccination.

These new sections are provided below and are directly from the publication.

ADA and Vaccinations

K.1. For any COVID-19 vaccine that has been approved or authorized by the Food and Drug Administration (FDA), is the administration of a COVID-19 vaccine to an employee by an employer (or by a third party with whom the employer contracts to administer a vaccine) a “medical examination” for purposes of the ADA? (12/16/20)

No.  The vaccination itself is not a medical examination.  As the Commission explained in guidance on disability-related inquiries and medical examinations, a medical examination is “a procedure or test usually given by a health care professional or in a medical setting that seeks information about an individual’s physical or mental impairments or health.”  Examples include “vision tests; blood, urine, and breath analyses; blood pressure screening and cholesterol testing; and diagnostic procedures, such as x-rays, CAT scans, and MRIs.”  If a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination.

Although the administration of a vaccination is not a medical examination, pre-screening vaccination questions may implicate the ADA’s provision on disability-related inquiries, which are inquiries likely to elicit information about a disability.  If the employer administers the vaccine, it must show that such pre-screening questions it asks employees are “job-related and consistent with business necessity.”  

K.2. According to the CDC, health care providers should ask certain questions before administering a vaccine to ensure that there is no medical reason that would prevent the person from receiving the vaccination. If the employer requires an employee to receive the vaccination from the employer (or a third party with whom the employer contracts to administer a vaccine) and asks these screening questions, are these questions subject to the ADA standards for disability-related inquiries? (12/16/20)

Yes. Pre-vaccination medical screening questions are likely to elicit information about a disability. This means that such questions, if asked by the employer or a contractor on the employer’s behalf, are “disability-related” under the ADA. Thus, if the employer requires an employee to receive the vaccination, administered by the employer, the employer must show that these disability-related screening inquiries are “job-related and consistent with business necessity.”  To meet this standard, an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others. 

By contrast, there are two circumstances in which disability-related screening questions can be asked without needing to satisfy the “job-related and consistent with business necessity” requirement. First, if an employer has offered a vaccination to employees on a voluntary basis (i.e. employees choose whether to be vaccinated), the ADA requires that the employee’s decision to answer pre-screening, disability-related questions also must be voluntary. If an employee chooses not to answer these questions, the employer may decline to administer the vaccine but may not retaliate against, intimidate, or threaten the employee for refusing to answer any questions. Second, if an employee receives an employer-required vaccination from a third party that does not have a contract with the employer, such as a pharmacy or other health care provider, the ADA “job-related and consistent with business necessity” restrictions on disability-related inquiries would not apply to the pre-vaccination medical screening questions.  

The ADA requires employers to keep any employee medical information obtained in the course of the vaccination program confidential.

K.3. Is asking or requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry? (12/16/20)

No. There are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related. Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry. However, subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be “job-related and consistent with business necessity.” If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.

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ADA and Title VII Issues Regarding Mandatory Vaccinations

K.4. Where can employers learn more about Emergency Use Authorizations (EUA) of COVID-19 vaccines? (12/16/20)

Some COVID-19 vaccines may only be available to the public for the foreseeable future under EUA granted by the FDA, which is different than approval under FDA vaccine licensure. The FDA has an obligation to:

[E]nsure that recipients of the vaccine under an EUA are informed, to the extent practicable under the applicable circumstances, that FDA has authorized the emergency use of the vaccine, of the known and potential benefits and risks, the extent to which such benefits and risks are unknown, that they have the option to accept or refuse the vaccine, and of any available alternatives to the product.

The FDA says that this information is typically conveyed in a patient fact sheet that is provided at the time of the vaccine administration and that it posts the fact sheets on its website. More information about EUA vaccines is available on the FDA’s EUA page

K.5. If an employer requires vaccinations when they are available, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a disability? (12/16/20)

The ADA allows an employer to have a qualification standard that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” However, if a safety-based qualification standard, such as a vaccination requirement, screens out or tends to screen out an individual with a disability, the employer must show that an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” Employers should conduct an individualized assessment of four factors in determining whether a direct threat exists: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm. A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite.  If an employer determines that an individual who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace, or take any other action, unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.

If there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace, but this does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities. For example, if an employer excludes an employee based on an inability to accommodate a request to be exempt from a vaccination requirement, the employee may be entitled to accommodations such as performing the current position remotely. This is the same step that employers take when physically excluding employees from a worksite due to a current COVID-19 diagnosis or symptoms; some workers may be entitled to telework or, if not, may be eligible to take leave under the Families First Coronavirus Response Act, under the FMLA, or under the employer’s policies.

Managers and supervisors responsible for communicating with employees about compliance with the employer’s vaccination requirement should know how to recognize an accommodation request from an employee with a disability and know to whom the request should be referred for consideration. Employers and employees should engage in a flexible, interactive process to identify workplace accommodation options that do not constitute an undue hardship (significant difficulty or expense). This process should include determining whether it is necessary to obtain supporting documentation about the employee’s disability and considering the possible options for accommodation given the nature of the workforce and the employee’s position. The prevalence in the workplace of employees who already have received a COVID-19 vaccination and the amount of contact with others, whose vaccination status could be unknown, may impact the undue hardship consideration. In discussing accommodation requests, employers and employees also may find it helpful to consult the Job Accommodation Network (JAN) website as a resource for different types of accommodations. JAN’s materials specific to COVID-19 are at https://askjan.org/topics/COVID-19.cfm.  

Employers may rely on CDC recommendations when deciding whether an effective accommodation that would not pose an undue hardship is available, but as explained further in Question K.7., there may be situations where an accommodation is not possible. When an employer makes this decision, the facts about particular job duties and workplaces may be relevant. Employers also should consult applicable Occupational Safety and Health Administration standards and guidance. Employers can find OSHA COVID-specific resources at: www.osha.gov/SLTC/covid-19/.

Managers and supervisors are reminded that it is unlawful to disclose that an employee is receiving a reasonable accommodation or retaliate against an employee for requesting an accommodation.

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K.6. If an employer requires vaccinations when they are available, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a sincerely held religious practice or belief? (12/16/20)

Once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccination, the employer must provide a reasonable accommodation for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII of the Civil Rights Act.  Courts have defined “undue hardship” under Title VII as having more than a de minimis cost or burden on the employer. EEOC guidance explains that because the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.  If, however, an employee requests a religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.

K.7. What happens if an employer cannot exempt or provide a reasonable accommodation to an employee who cannot comply with a mandatory vaccine policy because of a disability or sincerely held religious practice or belief? (12/16/20)

If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace.  This does not mean the employer may automatically terminate the worker.  Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.

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Title II of the Genetic Information Nondiscrimination Act and Vaccinations

K.8. Is Title II of GINA implicated when an employer administers a COVID-19 vaccine to employees or requires employees to provide proof that they have received a COVID-19 vaccination? (12/16/20)

No. Administering a COVID-19 vaccination to employees or requiring employees to provide proof that they have received a COVID-19 vaccination does not implicate Title II of GINA because it does not involve the use of genetic information to make employment decisions, or the acquisition or disclosure of “genetic information” as defined by the statute. This includes vaccinations that use messenger RNA (mRNA) technology, which will be discussed more below. As noted in Question K.9. however, if administration of the vaccine requires pre-screening questions that ask about genetic information, the inquiries seeking genetic information, such as family members’ medical histories, may violate GINA.

Under Title II of GINA, employers may not (1) use genetic information to make decisions related to the terms, conditions, and privileges of employment, (2) acquire genetic information except in six narrow circumstances, or (3) disclose genetic information except in six narrow circumstances. 

Certain COVID-19 vaccines use mRNA technology. This raises questions about genetics and, specifically, about whether such vaccines modify a recipient’s genetic makeup and, therefore, whether requiring an employee to get the vaccine as a condition of employment is an unlawful use of genetic information. The CDC has explained that the mRNA COVID-19 vaccines “do not interact with our DNA in any way” and “mRNA never enters the nucleus of the cell, which is where our DNA (genetic material) is kept.” (See https://www.cdc.gov/coronavirus/2019-ncov/vaccines/different-vaccines/mrna.html for a detailed discussion about how mRNA vaccines work).  Thus, requiring employees to get the vaccine, whether it uses mRNA technology or not, does not violate GINA’s prohibitions on using, acquiring, or disclosing genetic information.

K.9. Does asking an employee the pre-vaccination screening questions before administering a COVID-19 vaccine implicate Title II of GINA? (12/16/20)

Pre-vaccination medical screening questions are likely to elicit information about disability, as discussed in Question K.2., and may elicit information about genetic information, such as questions regarding the immune systems of family members.  It is not yet clear what screening checklists for contraindications will be provided with COVID-19 vaccinations.

GINA defines “genetic information” to mean: 

  • Information about an individual’s genetic tests;
  • Information about the genetic tests of a family member;
  • Information about the manifestation of disease or disorder in a family member (i.e., family medical history);
  • Information about requests for, or receipt of, genetic services or the participation in clinical research that includes genetic services by the an individual or a family member of the individual; and
  • Genetic information about a fetus carried by an individual or family member or of an embryo legally held by an individual or family member using assisted reproductive technology.

     

If the pre-vaccination questions do not include any questions about genetic information (including family medical history), then asking them does not implicate GINA. However, if the pre-vaccination questions do include questions about genetic information, then employers who want to ensure that employees have been vaccinated may want to request proof of vaccination instead of administering the vaccine themselves. 

GINA does not prohibit an individual employee’s own health care provider from asking questions about genetic information, but it does prohibit an employer or a doctor working for the employer from asking questions about genetic information. If an employer requires employees to provide proof that they have received a COVID-19 vaccination from their own health care provider, the employer may want to warn the employee not to provide genetic information as part of the proof. As long as this warning is provided, any genetic information the employer receives in response to its request for proof of vaccination will be considered inadvertent and therefore not unlawful under GINA.  See 29 CFR 1635.8(b)(1)(i) for model language that can be used for this warning.

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4

CDC, COVID-19, and Options to Reduce Quarantine

U.S. Centers for Disease Control (CDC) updated its COVID-19 quarantine options by suggesting quarantine periods shorter than 14-days.

On December 2, 2020, the U.S. Centers for Disease Control (CDC) updated its COVID-19 quarantine options by suggesting quarantine periods shorter than 14-days. This is because a 14-day quarantine can impose personal burdens that may affect physical and mental health as well as cause economic hardship that may reduce compliance. Therefore, based on local circumstances and resources, the CDC offers the following options as acceptable alternatives to shorten quarantine:

  • Quarantine can end after ten days without testing and if no symptoms have been reported during daily monitoring.
  • When diagnostic testing resources are sufficient and available, then quarantine can end after seven days if a diagnostic specimen tests negative and if no symptoms were reported during daily monitoring. The specimen may be collected and tested 48 hours before ending quarantine (for instance, in anticipation of testing delays) but quarantine cannot end earlier than after seven days.

5

New Opinion Letters Addressing FLSA

DOL announces new opinion letters addressing compliance related to FLSA.

On November 30, 2020, the U.S. Department of Labor (DOL) released the following new opinion letters addressing Fair Labor Standards Act (FLSA) compliance:

  • FLSA2020-17: Addressing whether an employee’s regular rate of pay, who is paid on a piece-rate basis, may be calculated by dividing total earnings by the number of productive and nonproductive hours worked during the workweek in the absence of a specific agreement with the employee to use such calculation.
  • FLSA2020-18: Addressing whether insect farming qualifies as agriculture under the FLSA and whether certain workers employed by an insect farming operation may be exempt from overtime pay requirements.

An opinion letter is an official, written opinion by the DOL’s Wage and Hour Division (WHD) on how a particular law applies in specific circumstances presented by the person or entity that requested the letter.

Individual state labor laws

State Specific Labor Law Updates:

Compliance can weigh down even the most experienced professionals. Our HR Advisors, one click compliance Handbook ,Compliance Database, HR Tools and Employee Training are ready to help navigate HR all year long. Everything included with your AllMyHR™ Solutions

tryhris HR Solutions guarantee and signature

Previous Labor Laws & Information

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Employment Law Updates: November 2020

Federal Law Updates: November 2020

Three Federal along with D.C and fourteen State Law Updates have been issued.  Our HR Advisors are versed and ready to answer your toughest HR questions to help your company through working remotely, coming back to work and all year long.

November 2020 State Law Alerts

Labor Law Updates for November 2020

1

Federal Contractor Minimum Wage Rate for 2021

Increase in minimum wage rates effective January 1, 2021.

Effective January 1, 2021, the applicable minimum wage rate for workers performing work on or in connection with federal contracts covered by Executive Order 13658 increases to $10.95 per hour. Additionally, the required minimum cash wage for tipped employees performing work on or in connection with covered contracts increases to $7.65 per hour.

2

Form I-9 Flexibility Extended to December 31, 2020

Annother extension to the flexibility rules for Form I-9 compliance.

On November 18, 2020, the U.S. Immigration and Customs Enforcement (ICE) announced another extension to the Employment Eligibility Verification (Form I-9) flexibility rule, which was extended to December 31, 2020, because of COVID-19 and the need for precautions. This flexibility rule, applicable only to remote workplaces, defers the physical presence requirement for in-person verification of the Form I-9 identity and employment eligibility documentation. However, the flexibility rule does not apply if there are employees physically present at the workplace. If there are employees physically present, then an employer must verify their Form I-9 identity and employment eligibility documentation in-person.

On March 19, 2020, the DHS first announced that the physical presence requirements were deferred due to COVID-19. The DHS and ICE websites provide additional updates about when the extensions will end and when normal operations will resume.

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DOL and New FLSA Opinion Letters

DOL announces new opinion letters addressing compliance related to FLSA.

On November 3, 2020, the U.S. Department of Labor (DOL) announced the following new opinion letters that address compliance issues related to the Fair Labor Standards Act (FLSA): 

  • FLSA2020-15: Addressing the compensability of time that employees spend attending voluntary training programs in certain situations.
  • FLSA2020-16: Addressing compensability of employee travel time in certain situations involving construction sites located away from the employer’s principal place of business.

An opinion letter is an official, written opinion by the DOL’s Wage and Hour Division (WHD) on how a particular law applies in specific circumstances.

Individual state labor laws

State Specific Labor Law Updates:

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Previous Labor Laws & Information

Deferring Federal Payroll Tax Obligations and COVID-19

DOL Defer Federal Payroll Taxes due to COVID-19

On August 28, 2020, the U.S. Department of the Treasury issued guidance to address President Trump’s August 8th memo authorizing the deferral of the withholding, deposit, and payment of Social Security payroll tax obligations for affected taxpayers. Employers are not required to defer the payment of Social Security taxes, the deferral is optional, but any deferred taxes must be repaid. The guidance and the memo do not address whether employees can elect to defer (or decline the deferral of) this federal payroll tax. 

Affected taxpayers are defined as employers that are:

  • Required to withhold and pay their employees’ share of federal payroll taxes (OASDI/Social Security taxes and Medicare, collectively FICA); and
  • Affected by the COVID-19 emergency.

The tax deferral is applicable to:

  • Wages paid September 1, 2020 through December 31, 2020; and
  • Only for employees who earn less than $4,000 during any biweekly pay period, before taxes, or the equivalent amount for other pay periods.

The $4,000 threshold determination is made on a pay period-by-pay period basis. For instance, if an employee’s pay for one pay period is less than $4,000, then that amount is considered applicable wages for that pay period, and the deferral applies to the wages paid to that employee for that pay period regardless of their wages from other pay periods.

This deferral is without penalty interest, additional amounts, or addition to the tax; however, payment of these taxes is delayed not forgiven, and the deferred taxes must be paid the following year. Congressional action may change this repayment requirement but for now, employers must withhold and pay the total applicable taxes, that were previously deferred in 2020 along with those that will be due for 2021, on the wages they pay between January 1, 2021 and April 30, 2021.

Failure to make these tax payments in 2021 will result in interest, penalties, and additions to tax will begin to accrue on May 1, 2021 on any unpaid amounts. If necessary, employers may plan to otherwise collect the total applicable taxes from the employee.

Note: The U.S. Department of Defense (DoD) is automatically deferring the withholding, effective September 2020, and civilian employees’ 6.2 percent OASDI tax withholding will be temporarily deferred if their wages, subject to OASDI, are less than $4,000 in any given pay period. The DoD provides a fact sheet and in depth FAQs addressing the program and deferral. For instance, an FAQ addresses that employees who separate or retire in 2020,before the Social Security tax can be collected in 2021, are still responsible for the Social Security tax repayment. 

DOL Opinion Letters on FLSA Compliance

On August 31, 2020, the U.S. Department of Labor announced the New opinion letters addressing the following Fair Labor Standards Act (FLSA) compliance issues:

  • FLSA2020-11: Whether a private “oilfield service company” that provides waste-removal services for oilfield operators may qualify as a “retail or service establishment” eligible to claim the FLSA’s Section 7(i) exemption for certain truck drivers that it employs.
  • FLSA2020-12: Employer compliance with FLSA’s minimum wage requirements when reimbursing delivery drivers for business-related expenses incurred while using their personal vehicles during the course of employment.
  • FLSA2020-13: Whether part-time employees who provide corporate-management training, and are paid a day rate with additional hourly compensation, qualify for the learned professional exemption and the highly compensated employee test under Section 13(a)(1) of the FLSA.
  • FLSA2020-14: Whether employees’ hours must fluctuate above and below 40 hours per week to qualify for the fluctuating workweek method of calculating overtime pay.

An opinion letter is an official, written opinion by the Department’s Wage and Hour Division (WHD) on how a particular law applies in specific circumstances presented by the person that requested the letter.

COVID-19, FFCRA, and Reopening Schools

On August 27, 2020 the U.S. Department of Labor’s Wage and Hour Division (WHD) published new frequently asked questions for workers and employers about qualifying for paid leave under the Families First Coronavirus Response Act (FFCRA) and the reopening of schools. These FAQs:

  • Explain eligibility for paid leave and the varied formats and schedules schools have announced as they plan to reopen, including blending in-person with distance learning.
  • Explain the benefits and protections available under both the paid sick leave and the expanded family and medical leave provisions of the FFCRA.
  • Address whether employees qualify for paid leave when:
  • A child attends a school operating on an alternate day basis;
  • A parent chooses remote learning when in-person instruction is available; and
  • A school begins the year with remote learning but may shift to in-person instruction if conditions change.

The FFCRA allows certain employees to take up to two weeks of paid sick leave and take up to 12 weeks of expanded family and medical leave, ten of which are paid, for specified reasons related to COVID-19. An eligible employee can take both types of paid leave because of a need to care for the employee’s child whose school or place of care is closed, or whose childcare provider is unavailable, due to COVID-19 related reasons. 

Compliance can weigh down even the most experienced professionals. Our HR Advisors, one click compliance Handbook ,Compliance Database, HR Tools and Employee Training are ready to help navigate HR all year long. Everything included with your AllMyHR™ Solutions

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Previous Labor Laws & Information

DOL Opinion Letter: Compensable Time for Sleeping Truck Drivers

Department of Labor Opinion Letter Clarifies Rest Compensation for Truck Drivers

On July 22, 2019 the Department of Labor clarified correct pay practices regarding ‘sleeper berths’ for truck drivers. 

This clarification came as a result of the special consideration regarding the ‘waiting to be engaged’ concept mentioned in the WHD fact sheet. The DOL’s Opinion Letter reversed the previous cap of eight hours of unpaid sleep time in a 24 hour shift. 

Department of Labor Truck Driver Compensation

This information comes directly from the Law Alerts in tryHRIS’s Compliance Database, which alerts you the moment Federal & State laws, regulations or requirements change.

**Before you implement new pay practices**

Contact your company attorney or our HR Advisors to discuss proposed changes prior to implementing.  

Prior Guidance

Under the WHD’s prior guidance, the FLSA was interpreted as follows:

  • Sleeping time may be excluded from hours worked where “adequate facilities” were furnished;
  • Only up to eight hours of sleeping time may be excluded in a trip 24 hours or longer; and
  • No sleeping time may be excluded for trips under 24 hours.

Browne v. P.A.M Transport Case Ruling

New Guidance under the Current DOL Opinion Letter

Per the newly released FLSA 2019-10 opinion letter, the Department of Labor Wage and Hour Division concluded that the time drivers are relieved of all duties and permitted to sleep in a sleeper berth is presumptively non-working time and is not compensable. However, there may be circumstances where a driver who retires to a sleeping berth is unable to use the time effectively for his or her own purposes.

Example of Exemptions
  • A driver who is required to remain on call while in the sleeping berth.
  • A driver required to complete paperwork, study job related materials or perform similar activity in the sleeping berth.
  • A rest period belonging to and controlled by the employer, in which the driver is considered ‘engaged to wait’.
  • For any reasons that result in rendering the driver unable to effectively sleep or engage in personal activities; in such cases, the time is compensable hours worked.  

Of note, an opinion letter is an official, written opinion by the WHD on how a particular law applies in specific circumstances presented by the individual person or entity that requested the letter. 

Read FLSA 2019-10

This letter, however, serves as non-binding guidance and should be considered alongside the current circumstances of the truck driver’s arrangements and the applicable state laws. 

**Before you implement new pay practices**

Contact your company attorney or our HR Advisors to discuss proposed changes prior to implementing.  

If law alerts and compliance changes have you a bit overwhelmed, our advisors can help your company navigate every new change, requirement, legislation, law and regulation. Additionally, we provide Certified Training (including Transportation, Loading Dock, Forklift Operator, OSHA & other related courses) for unlimited employees per company. Give us a call to see how we can help simplify compliance demands.

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