Employment Law Updates: March 2022

Posted on March 26, 2022March 28, 2022 by AllMyHR

Employment Law Updates: March 2022

Four Federal and six State Law Updates have been issued this month. 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.

Federal Labor Law Updates:

Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act

On March 3, 2022, President Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (HR 4445). The act amends the Federal Arbitration Act by allowing employees subject to pre-dispute mandatory arbitration agreements to pursue their claims related to sexual assault or sexual harassment in court. The law also allows workers to choose how to pursue their cases after sexual assault or harassment has occurred.

According to the White House press briefing, “[t]his law will affect the more than 60 million workers who are subject to mandatory arbitration clauses in the workplace, often without realizing it until they come forward with a claim against their employer. President Biden has long spoken against forced arbitration clauses in employment contracts, and today marks an important milestone in empowering survivors of sexual assault and sexual harassment and protecting employee rights.”

The White House also live broadcasted the signing and the Chair of the U.S. Equal Employment Opportunity Commission (EEOC) also released a statement about the act.

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HSA Telehealth Relief Extended Under Appropriations Act

On March 15, 2022, President Biden signed the Consolidated Appropriations Act, 2022 (HR 2471)(CAA 2022) with a provision that temporarily allows high deductible health plans (HDHP) to cover telemedicine services without a deductible from April 1, 2022, through December 31, 2022, and without health savings account (HSA) eligibility disruption. This is essentially an extension of the CARES Act provisions that expired on December 31, 2021, with a gap for calendar year plans from January 2022 through March 2022 when the standard deductible applies.

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New DOL Employer Resources to Prevent Retaliation

On March 10, 2022, the U.S. Department of Labor published the following new resources to assist in preventing retaliation against employees who assert their workplace rights or cooperate with Wage and Hour Division (WHD) investigations:

Field Assistance Bulletin No. 2022-2: Protecting Workers from Retaliation
Unlawful retaliation presentation
Retaliation website

Employers cannot retaliate against a worker for exercising their rights. Retaliation happens when an employer (through a manager, supervisor, administrator, or directly) fires an employee or takes any other type of adverse action against them for engaging in protected activity. An adverse action is an action that would discourage a reasonable employee from bringing up their concerns about a possible violation of their rights or discourage them from taking part in other related protected activity. Retaliation can have a negative impact on overall employee morale.

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Updated EEOC Guidance on Religious Accommodations and Vaccines

On March 1, 2022, the federal Equal Employment Opportunity Commission (EEOC) updated section L of its COVID-19 guidance about vaccinations and Title VII religious objections to COVID-19 vaccine requirements.

The EEOC enforces Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on religion. This includes a right for job applicants and employees to request an exception, called a religious or reasonable accommodation, from an employer requirement that conflicts with their sincerely held religious beliefs, practices, or observances. If an employer shows that it cannot reasonably accommodate an employee’s religious beliefs, practices, or observances without undue hardship on its operations, then they are not required to grant the accommodation. Read more about Section 12: Religious Discrimination and EEOC Guidelines on Discrimination Because of Religion.

Although other laws, such as the Religious Freedom Restoration Act, also may protect religious freedom in some circumstances, the EEOC’s guidance only describes employment rights and obligations under Title VII and specifically addresses:

That employees with a religious objection to getting the COVID-19 vaccine must tell their employer about it—when requesting an accommodation from getting it—and how.
That generally, employers should accept an employee’s assertion of their religious at face value but could make a factual inquiry for additional supporting information if it questions it.
How an employer shows that it would be an “undue hardship” to accommodate an employee’s request for religious accommodation.
When an employer grants some employees a religious accommodation from a COVID- 19 vaccination requirement because of their sincerely held religious beliefs, practices, or observances, it is not required to grant all such requests.
When there is more than one reasonable accommodation that would effectively resolve the conflict between the vaccination requirement and the employee’s sincerely held belief, etc., that an employer may choose which accommodation to offer.
The obligation to provide religious accommodations absent undue hardship and that it is a continuing obligation that allows for changing circumstances.

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State Specific Labor Law Updates:

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Employment Law Updates: January 2022

Posted on January 22, 2022December 6, 2023 by AllMyHR

Employment Law Updates: January 2022

Five Federal and eighteen State Law Updates have been issued this month. 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.

Federal Labor Law Updates:

2021 EEO-1 Component 1 Data Collection Tentatively Opens on April 12, 2022

The 2021 EEO-1 Component 1 data collection is tentatively scheduled to open on Tuesday, April 12th, 2022. The tentative deadline to file the 2021 EEO-1 Component 1 Report
is Tuesday, May 17th, 2022. Updates regarding the 2021 EEO-1 Component 1 data collection will be posted on this website as they become available.

Additionally, the Equal Employment Opportunity Commission (EEOC) is discontinuing the EEO-1 Component 1 Type 6 Establishment List Report for reporting establishments with fewer than 50 employees. Beginning with the 2021 EEO-1 Component 1 data collection, all filers reporting data for establishments with fewer than 50 employees must use a Type 8 Establishment Report to submit their data.

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COVID and ADA

The Justice Department updated its Common Questions About COVID and the ADA to address the following COVID-era issues affecting people with disabilities:

Medical facilities’ visitor policies must account for the rights of people with disabilities to receive equal access to care; and outdoor retail or dining spaces (sometimes called “streateries”) must be accessible to people with disabilities and not prevent their use of sidewalks and accessible parking.

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COVID-19 FAQs and Mandatory Coverage for Free OTC At-Home Tests by January 15, 2022

On January 10, 2022, the U.S. Department of Labor’s Employee Benefits Security Administration (EBSA) posted its FAQs regarding implementation of the Families First Coronavirus Response Act (FFCRA), the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), and the Affordable Care Act. These FAQs were prepared jointly by the Departments of Labor, Health and Human Services, and the Treasury and—like previously issued FAQs here and here—answer questions about the laws and legal compliance.

Importantly, the new FAQs discuss the Biden-Harris administration’s requirement that insurance companies and group health plans cover the cost of over-the-counter (OTC), at- home COVID-19 tests, so people with private health coverage can get them for free starting January 15th. According to the Centers for Medicare and Medicaid Services, this new coverage requirement means that most consumers with private health coverage can go online or to a pharmacy or store, buy a test, and either get it paid for up front by their health plan, or get reimbursed for the cost by submitting a claim to their plan. This requirement incentivizes insurers to cover these costs up front and ensures individuals do not need an order from their health care provider to access these tests for free.

Beginning January 15, 2022, individuals with private health insurance coverage or covered by a group health plan who purchase an over-the-counter COVID-19 diagnostic test authorized, cleared, or approved by the U.S. Food and Drug Administration (FDA) will be able to have those test costs covered by their plan or insurance. Insurance companies and health plans are required to cover eight free over-the-counter at-home tests per covered individual per month. That means a family of four, all on the same plan, would be able to get up to 32 of these tests covered by their health plan per month. There is no limit on the number of tests, including at-home tests, that are covered if ordered or administered by a health care provider following an individualized clinical assessment, including for those who may need them due to underlying medical conditions.

Over-the-counter test purchases will be covered in the commercial market without the need for a health care provider’s order or individualized clinical assessment, and without any cost-sharing requirements such as deductibles, co-payments or coinsurance, prior authorization, or other medical management requirements.

As part of the requirement, the Administration is incentivizing insurers and group health plans to set up programs that allow people to get the over-the-counter tests directly through preferred pharmacies, retailers or other entities with no out-of-pocket
costs. Insurers and plans would cover the costs upfront, eliminating the need for consumers to submit a claim for reimbursement. When plans and insurers make tests available for upfront coverage through preferred pharmacies or retailers, they are still required to reimburse tests purchased by consumers outside of that network, at a rate of up to $12 per individual test (or the cost of the test, if less than $12). For example, if an individual has a plan that offers direct coverage through their preferred pharmacy but that individual instead purchases tests through an online retailer, the plan is still required to reimburse them up to $12 per individual test. Consumers can find out more information from their plan about how their plan or insurer will cover over-the-counter tests.

State Medicaid and Children’s Health Insurance Program (CHIP) programs are currently required to cover FDA-authorized at-home COVID-19 tests without cost-sharing. In 2021, the Biden-Harris Administration issued guidance explaining that State Medicaid and Children’s Health Insurance Program (CHIP) programs must cover all types of FDA- authorized COVID-19 tests without cost sharing under CMS’s interpretation of the American Rescue Plan Act of 2019 (ARP). Medicare pays for COVID-19 diagnostic tests performed by a laboratory, such as PCR and antigen tests, with no beneficiary cost sharing when the test is ordered by a physician, non-physician practitioner, pharmacist, or other authorized health care professional.

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Supreme Court Halts OSHA ETS

The United States Supreme Court has halted the OSHA vaccine-or-test Emergency Temporary Standard (ETS). As a result, covered employers (those with 100 or more employees) are not currently required to comply with the ETS.

Employers should continue to comply with all other federal, state, and local requirements— this ruling only affects the OSHA ETS. If you’re in a state with an OSHA State Plan,
you should continue to keep an eye out for state OSHA requirements.

The Supreme Court ruling was limited to whether the stay should be put back in place. The case now returns to the Sixth Circuit Court of Appeals to determine whether the ETS is beyond OSHA’s authority. Based on the reasoning of the Supreme Court, which indicated that OSHA had overstepped its bounds by regulating public health generally rather

than just occupational health, it seems unlikely that the ETS will be revived. This post has been changed since its original publication.

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Processing Vaccination Accommodation Requests under the ADA

On January 14, 2022, the Job Accommodation Network published Processing Vaccination Accommodation Requests under the Americans with Disabilities Act outlining a sample process for employers to determine whether they must grant a vaccination exception or delay as a reasonable accommodation under the ADA when employees are subject to a federal or state-imposed vaccination mandate or an employer policy. When an employee requests an accommodation and the disability and need for the accommodation are not obvious or already documented, the employer can require reasonable medical documentation. There is no required ADA medical documentation request form, but the Safer Federal Workforce provides a template for federal employers that can be modified by other employers as needed.

Is the employee unable to be vaccinated for COVID-19 because of a disability?

No: Deny the request under the ADA, apply other laws if appropriate, or follow usual policies.
Yes: Can the employee safely work while unvaccinated in the current job and work environment?

Yes: Allow the vaccination exception or delay.
No: Can accommodations be provided to eliminate or reduce exposure risk to an acceptable level, absent undue hardship?

Yes: Grant the vaccination exception or delay and provide the accommodations.
No: Deny the request under the ADA, apply other laws if appropriate, or follow usual policies.

More information is located at FAQ: COVID-19 Vaccination and the Americans with Disabilities Act.

State Specific Labor Law Updates:

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Employment Law Updates: December 2021

Posted on December 26, 2021December 27, 2021 by AllMyHR

Employment Law Updates: December 2021

Four Federal, one District of Columbia, and fourteen State Law Updates have been issued this month. 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.

Federal Labor Law Updates:

Federal Contractor Minimum Wage and Final Tip Rules: Compliance Reminder

Minimum Wage

Beginning January 30, 2022, the minimum wage for work performed on or in connection with covered federal contracts will increase to $15.00 per hour. The minimum base wage for covered tipped employees will be $10.50 per hour.

A helpful FAQ can be found here.

80/20 Tip Credit Rule Restored

The Department of Labor’s (DOL) tip rule has been in limbo for the last year, but as of December 28, 2021, a new rule will be in effect. In the rule, the DOL makes it clear that an employer may only take a tip credit when its tipped employees perform work that is part of the employee’s tipped occupation. Work that is part of the tipped occupation includes work that produces tips as well as work that directly supports tip-producing work, provided that the directly supporting work is not performed for a substantial amount of time.

The DOL gives some useful examples of work that would be considered part of the employee’s tipped occupation and work that would not be considered part of their tipped occupation.

A server providing table service, such as taking orders, making recommendations, and serving food and drink — YES. That server preparing food, including salads, and cleaning the kitchen or bathrooms — NO.
A bartender making and serving drinks, talking to customers at the bar and, if the bar includes food service, serving food to customers — YES. That bartender cleaning the dining room or bathroom — NO.
A nail technician performing manicures and pedicures and assisting the patron to select the type of service — YES. That nail tech ordering supplies for the salon — NO.
A busser assisting servers with their tip-producing work for customers, such as table service, including filling water glasses, clearing dishes from tables, fetching and delivering items to and from tables, and bussing tables, including changing linens and setting tables — YES. That busser cleaning the kitchen or bathrooms — NO.
A parking attendant parking and retrieving cars and moving cars to retrieve a car at the request of customer — YES. That parking attendant servicing vehicles — NO.
A hotel housekeeper cleaning hotel rooms — YES. That housekeeper cleaning non- residential parts of a hotel, such as the exercise room, restaurant, and meeting rooms — NO.
A hotel bellhop assisting customers with their luggage — YES. That bellhop retrieving room service trays from guest rooms — NO.

In addition to work that produces tips (like the YES examples above), employees often perform work that is directly supporting their tip-producing work. For example, a server’s directly supporting work includes dining room prep, such as refilling salt and pepper shakers and ketchup bottles, rolling silverware, folding napkins, sweeping or vacuuming under tables in the dining area, and setting and bussing tables. Employers can take a tip credit when employee are doing directly supporting work up to a limit — once an employee spends a substantial amount of time on directly supporting work, the DOL considers them to be no longer engaged in their tipped occupation.

A substantial amount of time is defined as more than either 20% of the employee’s hours worked in a workweek while the employer is taking a tip credit or 30 continuous minutes. Once an employee has done directly supporting work for a substantial amount of time, the employer must stop taking a tip credit until the employee resumes clearly tip-producing activities.

Work that does not directly support their tip-producing work (such as the “NO” examples above) must always be paid without a tip credit.

You can read the rule and a lengthy explanation of how the DOL arrived where it did here. To find examples of how to calculate the amount of time that can be spent on directly supporting work while still applying a tip credit, search the linked document (the rule) for “5 hours.”

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Federal: EEOC Guidance on COVID-19, Americans with Disabilities Act (ADA), and Disability

The Equal Employment Opportunity Commission updated its What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws guidance by adding Section N that addresses:

How the ADA defines disability and how the definition applies to COVID-19.
When COVID-19 is an actual disability under the ADA and that it isn’t always an actual disability.
Examples of way that an individual with COVID-19 might or might not be substantially limited in a major life activity.
Depending on the facts, a person who has or had COVID-19 can be an individual with a record of a disability.
A person can be regarded as an individual with a disability if they have COVID-19 or their employer mistakenly believes they have COVID-19.
Examples of an employer regarding a person with COVID-19 as an individual with a disability.
An employer has not automatically discriminated against a person by regarding them as having a disability, for example the employer took an adverse action against the person because they have COVID-19 that is not both transitory and minor, for purposes of the ADA. It’s possible that an employer may not have engaged in unlawful discrimination under the ADA even if it took an adverse action based on an impairment. For example, an individual still needs to be qualified for the job held or desired.
A condition caused or worsened by COVID-19 can be a disability under the ADA.
An individual must establish coverage under a particular definition of disability to be eligible for a reasonable accommodation.
Employers can request supporting medical documentation before granting an employee’s request for a reasonable accommodation related to COVID-19.
Employers may voluntarily provide accommodations requested by an applicant or employee due to COVID-19, even if not required to do so under the ADA.
Employers that subjected an applicant or employee to an adverse action, and the applicant or employee is covered under any one of the three ADA definitions of disability, haven’t automatically violated the ADA because having a disability, alone, does not mean an individual was subjected to an unlawful employment action under the ADA.
ADA protections do apply to applicants or employees who do not meet an ADA definition of disability because the ADA’s requirements about disability-related inquiries and medical exams, medical confidentiality, retaliation, and interference apply to all applicants and employees, regardless of whether they have an ADA disability.

(Updated December 14, 2021)

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Federal: Extension of Form I-9 Flexibility Into 2022

The U.S. Immigration and Customs Enforcement (ICE) extended the Form I-9 compliance flexibility until April 30, 2022 due to necessary COVID-19 precautions. This extension continues to apply the guidance previously issued for employees hired on or after April 1, 2021, and work exclusively in a remote setting due to COVID-19-related precautions. Those employees are temporarily exempt from the physical inspection requirements for the Employment Eligibility Verification (Form I-9) until the earlier of:

Their working non-remotely on a regular, consistent, or predictable basis; or The extension ends.

On March 20, 2020, the Department of Homeland Security announced its deferral of the physical presence requirements for the Form I-9 to protect employees and employers from COVID-19. However, this policy only applies to employers and workplaces that are operating remotely. If there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for the form.

(ICE announcement December 15, 2021)

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Federal: OSHA Vaccine-or-Test Mandate is Back with New Deadlines

The Sixth Circuit Court of Appeals has lifted the stay on the OSHA vaccine-or-test mandate (the Emergency Temporary Standard, or ETS), which applies to employers with 100 or more employees. This decision is already being appealed, and the ETS could be put on hold once again. We’ll let you know if that happens.

Lifting of the stay means that the ETS is in immediate effect nationwide and employers should begin to comply. The first compliance deadline was December 6 (for policies, notices, masking, vaccination status, etc.), and employers were supposed to begin testing unvaccinated employees by January 4. However, OSHA recognizes that compliance in such a short time frame is not feasible for many employers, so has said the following about enforcement:

“To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements
before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.”

We encourage you to review the materials that have been released by OSHA to help you understand your compliance obligations. Keep in mind that they likely haven’t updated the deadlines in the materials yet.

28-Minute Webinar

Frequently Asked Questions

Fact Sheet

Three-page Summary of the ETS

The ETS with Commentary

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Employment Law Updates: November 2021

Posted on November 29, 2021November 29, 2021 by AllMyHR

Employment Law Updates: November 2021

Three Federal, one District of Columbia, and ten State Law Updates have been issued this month. 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.

Federal Labor Law Updates:

2022 Increase to Federal Contractor Minimum Wage

Effective January 30, 2022, the U.S. Department of Labor’s final rule, in conjunction with Executive Order 14026:

Increases the hourly minimum wage for certain federal contractors to $15 beginning January 30, 2022, with future inflation-based increases.
Eliminates the tipped minimum wage for federal contractors by 2024.
Ensures a $15 minimum wage for workers with disabilities performing work on or in connection with covered contracts.
Restores minimum wage protections to outfitters and guides operating on federal lands.

(Announced by DOL on November 22, 2021)

EEOC Addresses Employer Retaliation in its COVID-19 “What You Should Know”

On November 17, 2021, the Equal Employment Opportunity Commission (EEOC) updated its What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (“What You Should Know”) to include more about employer retaliation in pandemic-related employment situations.

The updates clarify the rights of employees and applicants who think they were retaliated against because of protected activities under the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act, or other employment discrimination laws, in relation to employer- mandated COVID-19 health and safety protocols. Key updates include:

Applicants and current and former employees are protected from employer retaliation when they assert their rights under any of the EEOC-enforced anti-discrimination laws.
Protected activity can take many forms, including:
– Filing a discrimination charge;
– Complaining to a supervisor about coworker harassment; or
– Requesting accommodation of a disability or a religious belief, practice, or observance, regardless of whether it’s granted or denied.
That the ADA prohibits not only retaliation for protected EEO activity, but also “interference” with an individual’s exercise of ADA rights.

The updates also support the EEOC’s participation in an interagency initiative—launched on the same day as these updates—to end retaliation against workers who exercise their protected labor and employment law rights. Other participants in the initiative include the U.S. Department of Labor (DOL) and the National Labor Relations Board (NLRB). The EEOC, DOL, and NLRB will collaborate to protect workers against unlawful retaliatory conduct, educate the public, and engage with employers, business organizations, labor organizations, and civil rights groups in the coming year.

Of note, the EEOC has updated its “What You Should Know” approximately 20 times throughout the pandemic.

OSHA Will Not Enforce Vaccination ETS Pending Further Litigation

According to the Occupational Safety and Health Administration (OSHA) website:

“On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard, published on November 5, 2021 (86 Fed. Reg. 61402) (ETS). The court ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.” While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”

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Employment Law Updates: October 2021

Posted on October 24, 2021October 25, 2021 by AllMyHR

Employment Law Updates: October 2021

One Federal and 14 State Law Updates have been issued this month. 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.

Federal Law Update

EEOC Updates to COVID-19 Vaccination Guidance

On October 13, 2021, the Equal Employment Opportunity Commission updated its guidance about:

COVID-19 Vaccinations: EEO Overview (K.1 and K.3)
The ADA and COVID-19 Vaccinations (K.4 and K.9)
Title VII and COVID-19 Vaccinations (K.13)
GINA and COVID-19 Vaccinations (K.15)
Employer Incentives for COVID-19 Voluntary Vaccinations Under ADA and GINA (K.16, K.17, and K.18)

Individual state labor laws

State Specific Labor Law Updates:

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Employment Law Updates: September 2021

Posted on September 27, 2021June 14, 2024 by AllMyHR

Employment Law Updates: September 2021

Five Federal and three State Law Updates have been issued this month. 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.

Federal Labor Law Update for September 2021

Final Tip Rule

On September 23, 2021, the U.S Department of Labor (DOL) announced that the publication of its Tips CMP final rule will be on the 24th, and under it:

The DOL can assess penalties—of up to $1,100 per violation—against employers who take the tips their employees earned, regardless of whether it was repeated or willful; and
The 2020 Tip final rule was clarified by explaining that although managers and supervisors are prohibited from receiving tips from mandatory tip pools, they can contribute to them for eligible employees.

The final rule is effective November 23, 2021.

OSHA Expands its Protections from Extreme Heat

On September 20, 2021, the federal Occupational Safety and Health Administration (OSHA) announced its new:

Heat-related hazards enforcement initiative.
National Emphasis Program on heat hazard cases, which will target high-risk industries and focus agency resources and staff time on heat inspections. The 2022 National Emphasis Program will build on the existing Regional Emphasis Program for Heat Illnesses in OSHA’s Region VI, which covers Arkansas, Louisiana, New Mexico, Oklahoma and Texas.
Rulemaking process to develop a workplace heat standard in October 2021.
National Advisory Committee on Occupational Safety and Health Heat Injury and Illness Prevention Work Group.

OSHA also recently implemented an intervention and enforcement initiative to prevent and protect workers from heat-related illnesses and deaths while they are working in hazardous hot environments that:

Prioritizes heat-related interventions and inspections of work activities on days when the heat index exceeds 80 degrees Fahrenheit; and
Applies to indoor and outdoor worksites in general industry, construction, agriculture, and maritime where potential heat-related hazards exist.

On days when a recognized heat temperature can result in increased risks of heat-related illnesses, OSHA will increase its enforcement efforts. Employers are also encouraged to implement intervention methods on heat priority days proactively, including regularly taking breaks for water, rest, shade, training workers on how to identify common symptoms and what to do when a worker suspects a heat-related illness is occurring, and taking periodic measurements to determine workers’ heat exposure.

OSHA has required its Area Directors across the nation to institute the following:

Prioritize inspections of heat-related complaints, referrals, and employer- reported illnesses and initiate an onsite investigation where possible.
Instruct compliance safety and health officers, during their travels to job sites, to conduct an intervention (providing the agency’s heat poster/wallet card, discuss the importance of easy access to cool water, cooling areas, and acclimatization) or open an inspection when they observe employees performing strenuous work in hot conditions.
Expand the scope of other inspections to address heat-related hazards where worksite conditions or other evidence indicates these hazards may be present.

President Biden also released a statement about mobilizing the administration to address extreme heat.

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Long COVID as a Disability

On September 9, 2021, the EEOC announced that it recognizes that long COVID may be a disability under the Americans with Disabilities Act (ADA) and Section 501 of the Rehabilitation Act in certain circumstances. The EEOC agreed with the analysis of “long COVID” by the Department of Health and Human Services (HHS) and Department of Justice (DOJ) in their “Guidance on ‘Long COVID’ as a Disability Under the ADA, Section 504, and Section 1557.” The EEOC will release technical assistance about COVID-19 and ADA “disability” in the employment context in the coming weeks. On August 2, 2021, the White House, HHS, Department of Education, and Department of Labor also hosted “A Conversation about Long COVID,” reviewing and providing support to the HHS and DOJ guidance.

Brief Summary of HHS and DOJ Guidance

According to the guidance, long COVID is a disability under the:

ADA (Titles II and III at 42 U.S.C. §§ 12101-12103, and 12131-12189);
Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794); and
Section 1557 of the Patient Protection and Affordable Care Act (42 U.S.C. § 18116).

Note: Read more on the Office of Disability Employment Policy’s JAN website about long COVID and the ADA.

Person with a Disability

A person with a disability is someone:

With a physical or mental impairment that substantially limits one or more of their major life activities;
With a record of such an impairment; or
Who is regarded as having such an impairment.

What is an Impairment

A person with long COVID has a disability if their condition or any of its symptoms is a physical or mental impairment that substantially limits one or more major life activities. A physical impairment includes any physiological disorder or condition affecting one or more body systems, including, among others, the neurological, respiratory, cardiovascular, and circulatory systems. A mental impairment includes any mental or psychological disorder, such as an emotional or mental illness. Long COVID is a physiological condition affecting one or more body systems. For example, some people with long COVID experience:

Lung damage
Heart damage, including inflammation of the heart muscle
Kidney damage
Neurological damage
Damage to the circulatory system resulting in poor blood flow
Lingering emotional illness and other mental health conditions

Accordingly, long COVID is a physical or mental impairment under the ADA, Section 504, and Section 1557.

What is a Major Life Activity

Long COVID can substantially limit one or more major life activities, which include a wide range of activities, such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, writing, communicating, interacting with others, and working. It also includes the operation of a major bodily function, such as the functions of the immune system, cardiovascular system, neurological system, circulatory system, or the operation of an organ.

What Substantially Limits

To “substantially limit” is construed broadly under these laws and shouldn’t require extensive analysis. The impairment doesn’t need to prevent or significantly restrict an individual from performing a major life activity, and the limitations don’t need to be severe, permanent, or long-term. Whether an individual with long COVID is substantially limited in a major bodily function or other major life activity is determined without the benefit of any medication, treatment, or other measures used by the individual to lessen or compensate for symptoms. Even if the impairment comes and goes, it is considered a disability if it would substantially limit a major life activity when the impairment is active.

Long COVID can substantially limit a major life activity and when someone with long COVID might be substantially limited in a major life activity are varied, for instance:

A person with long COVID who has lung damage that causes shortness of breath, fatigue, and related effects is substantially limited in respiratory function, among other major life activities.
A person with long COVID who has symptoms of intestinal pain, vomiting, and nausea that have lingered for months is substantially limited in gastrointestinal function, among other major life activities.
A person with long COVID who experiences memory lapses and “brain fog” is substantially limited in brain function, concentrating, and/or thinking.

However, long COVID isn’t always a disability. It requires an individualized assessment to determine whether a person’s long COVID condition or any of its symptoms substantially limits a major life activity.

Protections

People whose long COVID qualifies as a disability are entitled to the same rights and protections from discrimination as any other person with a disability under the ADA, Section 504, and Section 1557 (full and equal opportunities to participate in and enjoy all aspects of civic and commercial life).

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Vaccinations or Weekly Testing Required for All Employers with 100+ Employees, Paid Time Off, and More

On September 9, 2021, President Biden released his COVID-19 Action Plan requiring all employers with 100 or more employees to ensure their workers are vaccinated or tested weekly. According to the President, “The Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement.”

OSHA is also developing an additional ETS requiring employers with more than 100 employees to provide paid time off for workers to get vaccinated or recover from vaccination. The administration is preparing for boosters to start the week of September 20th, subject to authorization or approval by the FDA and a recommendation from the Advisory Committee on Immunization Practices.

The President’s plan also calls on entertainment venues like sports arenas, large concert halls, and other venues where large groups of people gather to require that their patrons be vaccinated or show a negative test for entry.

We will provide more information about these new rules when they are released.

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IRS Guidance on Reporting Qualified Sick and Family Leave Wages for 2021

On September 7, 2021, the Internal Revenue Service issued Notice 2021-53 to help employers with their Form W-2 reporting and the amount of qualified sick and family leave wages paid to employees for the leave they took in 2021 under the Families First Coronavirus Response Act (FFCRA), as amended by the COVID-Related Tax Relief Act of 2020, and the American Rescue Plan Act of 2021. Employers must report these wage amounts to employees either on Form W-2, Box 14, or in a separate statement provided with the W-2.

The guidance also contains model language (starting on page 18) that employers can use—as part of the Instructions for Employee for the Form W-2 or on the separate statement provided with the W-2—to explain to employees that these qualified sick and family leave wages may limit the amount of qualified sick leave equivalent or qualified family leave equivalent credits they may be entitled to for any of their self-employment income. The wage amount required by the notice on the Form W-2 will give employees who are also self- employed the information they need to figure out the amount of any sick and family leave equivalent credits they may claim in their self-employed capacities.

Of note, in July 2020, the IRS issued Notice 2020-54 with guidance about W-2 reporting of qualified sick leave and family leave under FFCRA for wages paid to employees for leave taken in 2020. The IRS has more tax relief information for employers affected by the COVID-19 pandemic on its website.

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Employment Law Updates: August 2021

Posted on August 23, 2021August 23, 2021 by AllMyHR

Employment Law Updates: August 2021

One Federal and two State Law Updates have been issued this month. 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.

Federal Labor Law Update for August 2021

COVID-19 Booster Shots

On August 18, 2021, the U.S. Department of Health and Human Services (HHS) released a statement on its plan for COVID-19 booster shots, “to maximize vaccine-induced protection and prolong its durability.” Subject to FDA approval, the booster—a third dose of either the Pfizer or Modern vaccine—will be offered starting September 20 and will first be available for those who were fully vaccinated eight months prior (January 2021). That way, those who were fully vaccinated earliest in the vaccination rollout, including many health care providers, nursing home residents, and other seniors, will likely be eligible for a booster. The HHS also anticipates booster shots are likely for people who received the Johnson & Johnson (J&J) vaccine, but its rollout didn’t start in the U.S. until March 2021, and the department is waiting for more data on J&J before announcing that booster plan.

OSHA Updates Coronavirus Guidance

On August 13, 2021, the Occupational Safety and Health Administration issued updated guidance to help employers protect workers from the coronavirus. The updated guidance reflects developments in science and data, including the Centers for Disease Control and Prevention’s updated COVID-19 guidance issued July 27, 2021.

The updated guidance expands information on appropriate measures for protecting workers in higher-risk workplaces with mixed-vaccination status workers, particularly for industries such as manufacturing; meat, seafood and poultry processing; high volume retail and grocery; and agricultural processing, where there is often prolonged close contact with other workers and/or non-workers.

OSHA’s latest guidance:

Recommends that fully vaccinated workers in areas of substantial or high community transmission wear masks in order to protect unvaccinated workers;
Recommends that fully vaccinated workers who have close contacts with people with coronavirus wear masks for up to 14 days unless they have a negative coronavirus test at least three to five days after such contact;
Clarifies recommendations to protect unvaccinated workers and other at-risk workers in manufacturing, meat and poultry processing, seafood processing and agricultural processing; and
Links to the latest guidance on K-12 schools and CDC statements on public transit.

According to OSHA, vaccination is the optimal step to protect workers and encourages employers to engage with workers and their representatives to implement multi-layered approaches to protect unvaccinated or otherwise at-risk workers from the coronavirus.

OSHA also reviews the COVID-19 Healthcare Emergency Temporary Standard every 30-days and its safeguards remain more important than ever. After reviewing the latest guidance, science and data, and consulting with the CDC and partners, OSHA determined the requirements of the healthcare ETS remain necessary to address the danger of the coronavirus in healthcare. OSHA will continue to monitor and assess the need for changes in the healthcare ETS each month.

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Employment Law Updates: July 2021

Posted on July 24, 2021July 26, 2021 by AllMyHR

Employment Law Updates: July 2021

One Federal and ten State Law Updates have been issued this month. 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.

Federal Labor Law Update for July 2021

OSHA’s National Emphasis Program for COVID-19 Revised and Interim Enforcement Response Plan Updated

On July 8, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) announced that it revised its National Emphasis Program (NEP) for COVID-19. OSHA launched the NEP on March 12, 2021, to focus on companies with the largest number of workers at serious risk of contracting COVID-19 and on employers that retaliate against employees who complain about unsafe or unhealthful conditions or exercise other rights under the Occupational Safety and Health Act.

The revised NEP:

Adjusts the targeted industries to those most at risk for COVID-19 exposure, but still includes healthcare and non-healthcare, such as meat and poultry processing; and
Removes an appendix that provided a list of Secondary Target Industries for the former COVID-19 NEP.

For inspections in healthcare, the revised NEP refers compliance safety and health officers (CSHOs) to the new directive, Inspection Procedures for the COVID-19 Emergency Temporary Standard, issued on June 28, 2021.

Inspections in non-healthcare establishments will follow procedures outlined in the Updated Interim Enforcement Response Plan (IERP) published July 7, 2021, it replaces the March 12, 2021 memorandum, and the updates include:

Enforcing protections for workers in non-healthcare industries who are unvaccinated or not fully vaccinated;
Where respirator supplies and services are readily available, OSHA will stop exercising enforcement discretion for temporary noncompliance with the Respiratory Protection standard based on employers’ claims of supply shortages due to the COVID-19 pandemic;
OSHA will no longer exercise enforcement discretion for the same requirements in other health standards, where full compliance may have been difficult for some non-healthcare employers due to the COVID-19 pandemic;
Updated instructions and guidance for OSHA area offices and CSHOs for handling COVID-19-related complaints, referrals and severe illness reports;
Ensuring workers are protected from retaliation; and
References to the revised NEP for COVID-19.

The IERPs goals are to identify exposures to COVID-19 hazards, ensure appropriate control measures are implemented, and address violations of OSHA standards (other than the ETS) and the General Duty Clause. The updated IERP will remain in effect until further notice and is intended to be time-limited to the current COVID-19 public health crisis.

The ETS became effective June 21, 2021. Healthcare employers must comply with most provisions by July 6, 2021, and with training, ventilation, and barrier provisions by July 21, 2021.

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Employment Law Updates: June 2021

Posted on June 26, 2021June 29, 2021 by AllMyHR

Employment Law Updates: June 2021

Three Federal, along with D.C., and thirteen State Law Updates have been issued this month. 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.

Federal Labor Law Updates for June 2021

New EEO-1 Filing Deadline

On June 28, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) announced that the deadline for employers to submit and certify their 2019/2020 EEO-1 Component 1 data was changed to August 23, 2021. Of note, the EEO-1 Component 1 Report is currently open and organizations can file their information through the new online filing system. The EEOC encourages eligible employers to file their required report(s) as soon as possible.

Juneteenth National Independence Day is a New Federal Holiday

On June 17, 2021, President Biden signed legislation (SB 475) mandating June 19 as a federal holiday (also referred to as a legal public holiday) to commemorate Juneteenth National Independence Day.

Other federal holidays include:

New Year’s Day – January 1
Birthday of Martin Luther King, Jr. Day – January 20
Memorial Day – May 31
Labor Day – September 6
Columbus Day – October 11
Veterans Day – November 11
Thanksgiving Day – November 25
Christmas Day – December 24

Read more about the history of Juneteenth from the Smithsonian National Museum of African American History and Culture in their article, “The Historical Legacy of Juneteenth.”

The law took immediate effect.

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New EEOC Resources for Sexual Orientation and Gender Identity Workplace Rights

On June 15, 2021, the federal Equal Employment Opportunity Commission (EEOC) announced new resources for employees, applicants, and employers about the rights of all employees, including lesbian, gay, bisexual, and transgender workers, to be free from sexual orientation and gender identity discrimination in employment. These new resources include:

A new landing page on the EEOC website with consolidated information about sexual orientation and gender identity discrimination.
A new technical assistance document about the Bostock decision and the EEOC’s positions on the laws it enforces. In Bostock v. Clayton County, Georgia, 17-1618 (S. Ct. June 15, 2020), the Supreme Court held that firing individuals because of their sexual orientation or transgender status violates Title VII’s prohibition on discrimination because of sex.
Links to EEOC statistics and updated fact sheets with recent EEOC litigation and federal sector decisions about sexual orientation and gender identity discrimination.

The technical assistance document also:

Explains the significance of the Bostock ruling;
Compiles information about sexual orientation and gender identity discrimination in one place;
Reiterates the EEOC’s positions on basic Title VII concepts, rights, and responsibilities as they pertain to discrimination based on sexual orientation and gender identity; and
Provides information about the EEOC’s role in enforcing Title VII and protecting employees’ civil rights.

The law forbids sexual orientation and gender identity discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment. Additionally, it is unlawful to subject an employee to workplace harassment that creates a hostile work environment based on sexual orientation or gender identity. Harassment can include, for example, offensive or derogatory remarks about sexual orientation (like being gay or straight). Harassment can also include offensive or derogatory remarks about a person’s transgender status or gender transition.

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Employment Law Updates: May 2021

Posted on May 24, 2021December 6, 2023 by AllMyHR

Employment Law Updates: May 2021

Three Federal and six State Law Updates have been issued this month. 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.

Federal Labor Law Updates for May 2021

OSHA Endorses CDC Guidance for Fully Vaccinated Workers and Masks

According to the Occupational Safety and Health Administration’s (OSHA) website providing information about protecting workers against COVID-19 in the workplace, “The Centers for Disease Control and Prevention (CDC) issued new guidance relating to recommended precautions for people who are fully vaccinated, which is applicable to activities outside of healthcare and a few other environments. OSHA is reviewing the recent CDC guidance and will update its materials on its website accordingly. Until those updates are complete, please refer to the CDC guidance for information on measures appropriate to protect fully vaccinated workers.” According to the CDC’s guidance updated on May 13, 2021, fully vaccinated people no longer need to wear a mask or physically distance in any setting, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.

Fully Vaccinated People and Masks

On May 13, 2021, the Centers for Disease Control and Prevention announced that people who are fully vaccinated against COVID-19 can:

Resume activities that they did prior to the pandemic; and
Do so without wearing a mask or physically distancing, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.

According to the CDC, people are generally considered fully vaccinated:

Two weeks after their second dose in a two-dose series, such as the Pfizer or Moderna vaccines; or
Two weeks after a single-dose vaccine, such as Johnson & Johnson’s Janssen vaccine.

Some states have enacted strict laws requiring face masks, but they may be lifted in the near future. For instance, according to a California Department of Public Health press release from May 3, 2021, the state continues to require the use of face coverings, regardless of vaccination status, in indoor settings outside of one’s home.

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HHS and Protections Against Sexual Orientation and Gender Identity Discrimination in Health Care

On May 10, 2021, the U.S. Department of Health and Human Services (HHS) announced that the Office for Civil Rights (OCR) will interpret and enforce Section 1557 of the Affordable Care Act (Section 1557) to prohibit discrimination based on sexual orientation and gender identity. Section 1557 prohibits discrimination based on race, color, national origin, sex (this now includes sexual orientation and gender identity), age, or disability in covered health programs or activities. Additionally, covered entities are prohibited from discriminating against consumers based on sexual orientation or gender identity.

This announcement was made in consideration of a 2020 Supreme Court of the United States (SCOTUS) decision in Bostock v. Clayton County that held Title VII’s prohibition on sex discrimination in employment necessarily included discrimination when it is based on sexual orientation and gender identity. This ruling conflicted with the former administration’s narrow approach to the definition of discrimination based on sex. According to HHS Secretary Xavier Becerra,

“[T]he Supreme Court has made clear that people have a right not to be discriminated against on the basis of sex and receive equal treatment under the law, no matter their gender identity or sexual orientation. That’s why today HHS announced it will act on related reports of discrimination. Fear of discrimination can lead individuals to forgo care, which can have serious negative health consequences. It is the position of the Department of Health and Human Services that everyone—including LGBTQ people—should be able to access health care, free from discrimination or interference, period.

The OCR enforces Section 1557 to protect the civil rights of individuals who access (or seek to access) covered health programs or activities and, “[d]iscrimination in health care impacts health outcomes. Research shows that one quarter of LGBTQ people who faced discrimination postponed or avoided receiving needed medical care for fear of further discrimination.”

“The mission of our Department is to enhance the health and well-being of all Americans, no matter their gender identity or sexual orientation. All people need access to health care services to fix a broken bone, protect their heart health, and screen for cancer risk,” said Dr. Rachel Levine, Assistant Secretary for Health. “No one should be discriminated against when seeking medical services because of who they are.”

“OCR’s mission is to protect people from all forms of discrimination,” said Robinsue Frohboese, Acting OCR Director. “The OCR will follow Supreme Court precedent and federal law, and ensure that the law’s protections extend to those individuals who are discriminated against based on sexual orientation and gender identity.” Therefore, beginning May 10, 2021, and consistent with Bostock, the OCR will interpret Section 1557’s prohibition on discrimination based on sex to include discrimination based on sexual orientation and gender identity.

DOL Withdraws Independent Contractor Rule from Previous Administration

On May 5, 2021, the U.S. Department of Labor (DOL) announced a final rule withdrawing the Independent Contractor Status Under the Fair Labor Standards Act final rule (Independent Contractor Rule) that was set to take effect in March 2021 but was postponed. According to the DOL, it is withdrawing the Independent Contractor Rule for several reasons, including:

The rule conflicted with the FLSA’s text and purpose, as well as relevant judicial precedent.
The two core factors the rule prioritized for determining employee status under the FLSA undermined the economic realities test and court decisions requiring analysis of the totality of the circumstances related to the employment relationship.
Application of the rule narrowed the facts and considerations that would be used when analyzing whether a worker is an employee or an independent contractor. This would result in workers losing FLSA protections. The FLSA includes provisions that require covered employers to pay employees at least the federal minimum wage for every hour they work and overtime compensation at not less than one-and-one-half times their regular rate of pay for every hour over 40 in a workweek. FLSA protections do not apply to independent contractors.

The withdrawal is effective May 6, 2021, its Federal Register publish date, resulting in there being no new rule that will currently take effect and the DOL will continue to use its previously established standards. The DOL also provides an FLSA Advisor that further discusses independent contractors.