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:
1
2022 Increase to Federal Contractor Minimum Wage
- 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)
2
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.
3
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.”
State Specific Labor Law Updates:











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Employment Law Updates: October 2021
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: July 2021
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
1
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.
Individual state labor laws
State Specific Labor Law Updates:










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Employment Law Updates: June 2021
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
1
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.
2
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.
3
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.
Individual state labor laws
State Specific Labor Law Updates:














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Employment Law Updates: March 2021
Employment Law Updates: March 2021
Five Federal and ten 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.

Federal Law Alerts for March 2021
1
Tipped Employee Final Rule in Flux
- On February 26, 2021, the DOL issued a final rule delaying the effective date until April 30, 2021; and
- On March 23, 2021, the Department announced two Notices of Proposed Rulemaking (NPRMs) for tipped workers as the effective date of the 2020 Tip final rule nears:
- Tip Regulations Under the Fair Labor Standards Act (FLSA); Delay of Effective Date, which proposes to further extend, until December 31, 2021, the effective date of two portions of the 2020 Tip final rule related to the assessment of civil money penalties (CMPs) under the FLSA, and the portion addressing the FLSA tip credit’s application to tipped employees who perform tipped and non-tipped duties. The Department invites public comments on this NPRM for twenty (20) days following publication of the NPRM in the Federal Register (from March 25, 2021 through April 14, 2021).
- Tip Regulations under the Fair Labor Standards Act (FLSA); Partial Withdrawal, which proposes to withdraw and re-propose the two portions of the 2020 Tip final rule addressing CMP assessments. This NPRM also seeks comments on whether to revise one other portion of the 2020 Tip final rule (addressing managers and supervisors who cannot keep employee’s tips) and asks how it might improve the recordkeeping requirements in the 2020 Tip final rule in a future rulemaking. The Department invites public comments on this NPRM for sixty (60) days following publication of the NPRM in the Federal Register (from March 25, 2021 through May 24, 2021).
However, the following portions of the final rule will continue to take effect on April 30, 2021:
- Employers that do not take a tip credit may implement mandatory “nontraditional” tip pools, which are tip pools that include employees who do not customarily and regularly receive tips;
- New recordkeeping requirement for employers that do not take a tip credit but collect employees’ tips to operate a mandatory tip pool; and
- Employers, regardless of whether they take a tip credit, are prohibited from keeping employees’ tips for any reason, which includes prohibiting managers and supervisors from keeping tips received by employees.
Read more about the final rule on the DOL’s website.
2
OSHA Updated Interim Enforcement Response Plan for COVID-19
On March 12, 2021, the Occupational Safety and Health Administration (OSHA) released an Updated Interim Enforcement Response Plan for COVID-19 which provides new instructions and guidance about how it will handle COVID-19-related complaints, referrals, and severe illness reports, summarized as follows:
- OSHA will continue to implement the Department of Labor’s (DOL) COVID-19 Workplace Safety Plan to reduce the risk of COVID-19 transmission to OSHA Compliance Safety and Health Officers (CSHOs) during inspections.
- Pursuant to the March 12, 2021 National Emphasis Program (NEP) for COVID-19, OSHA will prioritize COVID-19-related inspections involving deaths or multiple hospitalizations because of occupational exposures to COVID-19. The NEP also protects against worker retaliation.
- OSHA will perform the following types of workplace inspections, generally on-site:
- OSHA identifies exposures to COVID-19 hazards, ensures that appropriate control measures are implemented, and addresses violations of OSHA standards and its General Duty Clause.
- OSHA will sometimes use phone and video conferencing, instead of face-to-face employee interviews, to reduce potential exposures to CSHOs. In-person interviews will be conducted when necessary and safe.
- OSHA will minimize in-person meetings with employers and encourage employers to provide documents and other data electronically to CSHOs.
- Area Directors (AD) will ensure that CSHOs are prepared and equipped with the appropriate precautions and personal protective equipment (PPE) when performing on-site inspections related to COVID-19 and throughout the pandemic.
- All inspections will generally be done so that COVID-19-related citations, and their abatement, are done quickly.
- If on-site inspections cannot safely be performed (for example, if the only available CSHO has reported a medical contraindication), the AD will approve remote-only inspections that may be conducted safely.
This plan revokes the administration’s May 19, 2020 plan, remains in effect until further notice, and is intended to be time-limited to the current COVID-19 public health crisis. OSHA’s webpage will have updates about this plan and more.
3
2019 and 2020 EEO-1 Reporting to Open at End of April 2021
On March 12, 2021, the U.S. Equal Employment Opportunity (EEOC) announced that the EEO-1 Component 1 data collection for 2019 and 2020 will open at the end of April 2021 and close in July 2021. Filers should begin preparing to submit data in anticipation of the April 2021 opening. The exact closing date will be posted when the data collection launches. Employers will be notified of additional details and how to access the online filing system in April. Read more on the EEOC’s employer EEO-1 Data Collection website.
4
American Rescue Plan Act - Extension of EPSL and EFMLA and New COBRA Subsidies
On March 11, 2021, President Joe Biden signed the American Rescue Plan Act of 2021 (HR 1319) (ARPA) to address the ongoing economic impacts of COVID-19. The portions of the act that directly affect HR functions are discussed below.
Optional Extension of Sick and Family Leaves
Part of the ARPA is an extension of the current tax credit scheme for Emergency Paid Sick Leave (EPSL) and Emergency Family and Medical Leave (EFMLA) under the Families First Coronavirus Response Act (FFCRA). The FFCRA required many employers to provide EPSL and EFMLA in 2020, but became optional when it was previously extended to cover January 1 through March 31, 2021.
The new extension under the ARPA takes effect April 1, 2021 through September 30, 2021 and, similar to the current version, remains optional. In addition, tax credits are available but only to employers with fewer than 500 employees and up to certain caps. To receive the tax credit, employers are required to follow the FFCRA’s original provisions. For example, they cannot deny EPSL or EFMLA to an employee if they’re otherwise eligible, cannot terminate them for taking EPSL or EFMLA, and must continue their health insurance during these leaves.
Emergency Paid Sick Leave (EPSL) Changes
Key changes to EPSL, effective from April 1 through September 30, 2021, are:
- Employees may take EPSL to get the COVID vaccine and recover from any related side effects.
- Employees may take EPSL when seeking or waiting for a COVID-19 diagnosis or test result if they’ve been exposed to the virus or if their employer required a diagnosis or test.
- Employees will be eligible for a new bank of leave on April 1. Full-time employees are entitled to 80 hours and part-time employees are entitled to a prorated amount. Unused hours from before April 1 will not carryover.
- Employers cannot provide EPSL in a manner that favors highly compensated employees or full-time employees or that discriminates based on how long employees have worked for the employer (tenure). This is discriminatory and will disqualify the employer from receiving the tax credit. Failing to comply with the FFCRA (including its antiretaliation provisions) also disqualifies employers from receiving the tax credit.
Emergency Family and Medical Leave (EFMLA) Changes
Key changes to EFMLA, in effect from April 1 through September 30, 2021, are:
- EFMLA may be used for any EPSL reason, in addition to the original childcare reasons. This includes the two new EPSL reasons noted above (vaccination and diagnosis/test results).
- The 10-day unpaid waiting period was eliminated.
- The cap on the reimbursable tax credit for EFMLA was increased to $12,000 (from $10,000). This applies to all EFMLA taken by an employee beginning April 1, 2020. This change accounts for the additional 10 days of paid time off; however, the daily cap of $200 remains the same.
- Employers cannot provide EFMLA in a manner that favors highly compensated employees or full-time employees or that is based on how long employees have worked for the employer.
Reasons for Using EPSL and EFMLA
Starting on April 1, employees may take EPSL or EFMLA under the same conditions, which are:
- When quarantined or isolated subject to federal, state, or local quarantine or isolation order.
- When advised by a health care provider to self-quarantine because of COVID-19.
- When the employee is:
- Experiencing symptoms of COVID-19 and seeking a medical diagnosis;
- Seeking or awaiting the results of a diagnostic test for, or a medical diagnosis of, COVID-19 because they have been exposed or their employer requested the test or diagnosis; or
- Obtaining a COVID-19 vaccination or recovering from any injury, disability, illness, or condition related to the vaccination.
- When caring for another person who is isolating or quarantining due to government or doctor’s orders.
- When caring for a child whose school or place of care is closed due to COVID-19.
Tax Credit Review
The tax credits available between April 1 and September 30 are the same as under the original FFCRA, except for the increased aggregate cap for EFMLA. Regardless of how much EPSL or EFMLA an employee used prior to April 1, the available tax credits are as follows:
- The credit available for EPSL when used for reasons 1, 2, or 3 (self-care) is up to 100 percent of their regular pay, with a limit of $511 per day.
- The credit available for EPSL when used for reasons 4 or 5 (care for another) is up to 2/3 of their regular rate of pay, with a limit of $200 per day.
- The credit available for EFMLA for any reason is up to 2/3 of their regular pay, with a limit of $200 per day and a cap of $12,000 per employee.
Employers may also claim a credit for their share of Medicare tax on the employee’s wages and the cost of maintaining the employee’s health insurance (qualified health plan expenses) during their absence.
COBRA Subsidies
ARPA provides a 100 percent COBRA subsidy if the employee’s work reduction or termination was involuntary. The subsidy applies for up to six months of coverage from April 2021 through September 2021 (unless the individual’s maximum COBRA period expires earlier). For group plans subject to the federal COBRA rules, the employer will be required to pay the COBRA premium but will be reimbursed through a refundable payroll tax credit.
Employers with fewer than 20 workers usually are exempt from the federal COBRA rules, but their group medical insurance plans may be subject to a state’s mini-COBRA law. In that case, it appears the subsidy will be administered by the carrier. The carrier will pay the premium and then be reimbursed by the government.
Employers will need to work with their group health plan carriers and vendors on how to administer the new subsidy provision. Although it takes effect April 1, 2021, employees who were terminated earlier but are still in their COBRA election window also are included. Federal guidance is expected to be released by April 10, including model notices that plans may use.
Note: The COBRA subsidy does not apply during FFCRA leaves because employees are entitled to maintain their health insurance during those leaves on the same terms as though they continued working.
Additional Information
The White House has a website dedicated to the American Rescue Plan, and according to the IRS, it is “reviewing implementation plans for the American Rescue Plan Act of 2021. Additional information about a new round of Economic Impact Payments, the expanded Child Tax Credit, including advance payments of the Child Tax Credit, and other tax provisions will be made available as soon as possible on IRS.gov. The IRS strongly urges taxpayers to not file amended returns related to the new legislative provisions or take other unnecessary steps at this time.”
“The IRS will provide taxpayers with additional guidance on those provisions that could affect their 2020 tax return, including the retroactive provision that makes the first $10,200 of 2020 unemployment benefits nontaxable. For those who haven’t filed yet, the IRS will provide a worksheet for paper filers and work with software industry to update current tax software so that taxpayers can determine how to report their unemployment income on their 2020 tax return. For those who received unemployment benefits last year and have already filed their 2020 tax return, the IRS emphasizes they should not file an amended return at this time, until the IRS issues additional guidance.”
5
CDC Guidance for Fully Vaccinated
On March 8, 2021, the Centers for Disease Control and Prevention (CDC) released its first Interim Public Health Recommendations for Fully Vaccinated People guidance under which fully vaccinated people can:
- Visit with other fully vaccinated people indoors without wearing masks or physical distancing.
- Visit with unvaccinated people from a single household who are at low risk for severe COVID-19 disease indoors without wearing masks or physical distancing.
- Refrain from quarantine and testing following a known exposure if asymptomatic.
However, the CDC recommends that fully vaccinated people should continue to:
- Take precautions in public like wearing a well-fitted mask and physical distancing.
- Wear masks, practice physical distancing, and adhere to other prevention measures when visiting with unvaccinated people who are at increased risk for severe COVID-19 disease, including household members.
- Wear masks, maintain physical distance, and practice other prevention measures when visiting with unvaccinated people from multiple households.
- Avoid medium- and large-sized in-person gatherings.
- Get tested if experiencing COVID-19 symptoms.
- Follow guidance issued by individual employers.
- Follow CDC and health department travel requirements and recommendations.
Individual state labor laws
State Specific Labor Law Updates:










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Employment Law Updates: February 2021
State-Specific Labor Law Updates
Seven State Law Updates have been issued. Our HR Advisors are versed and ready to answer your toughest HR questions.








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Employment Law Updates: October 2020
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Federal Law Updates: October 2020
Five Federal along with eight 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.

Labor Law Updates for October 2020
1
DOL Releases FFCRA Eligibility Tool
Tool to assist employers and employees on determining eligibility for certain types of leave.
In October 2020, the federal Department of Labor released a Families First Coronavirus Relief Act (FFCRA) eligibility webtool for employees to determine their eligibility for paid sick leave or paid expanded family and medical leave. The webtool will also assist employers in determining their obligations to provide paid sick leave or paid expanded family and medical leave. The employer webtool is still being developed.
2
COLA Increase for 2021
The Social Security Administration announced a cost-of-living adjustment.
On October 13, 2020, the Social Security Administration announced the following for January 2021:
- The cost-of-living adjustment (COLA) will increase by 1.3 percent; and
- The maximum amount of earnings subject to the Social Security tax (taxable maximum) will increase to $142,800 from $137,700.
Read the full announcement on the Social Security Administration’s site.
3
FAQs for Executive Order 13950 – Federal Contractors Combating Race and Sex Stereotyping
U.S. Department of Labor issued the following FAQs for Executive Order 13950.
On October 7, 2020, the U.S. Department of Labor issued the following FAQs for Executive Order 13950, “Combating Race and Sex Stereotyping,” which addresses race stereotyping, sex stereotyping, or scapegoating and federal contractors’ workplace diversity and inclusion trainings:
- When does Executive Order 13950 become effective?
- What constitutes “race or sex stereotyping” under Executive Order 13950?
- What constitutes “race or sex scapegoating” under Executive Order 13950?
- Is such stereotyping and scapegoating unlawful in a training program?
- What are examples of race or sex stereotyping or scapegoating?
- Does Executive Order 13950 prohibit unconscious bias or implicit bias training?
- How can I file a complaint alleging unlawful training programs?
- What will happen with complaints received by the hotline?
- When will the Department of Labor publish the Request for Information mandated by Executive Order 13950?
4
CDC Guidance for Flu Season and COVID-19
The CDC updated it’s “The Difference between the Flu and COVID-19 page.
On October 6, 2020, the Centers for Disease Control (CDC) updated it’s The Difference between the Flu and COVID-19 page and addresses the following:
- Signs and symptoms;
- How long symptoms appear after exposure and infection;
- How long someone can spread the virus;
- How it spreads;
- People at high-risk for severe illness;
- Complications;
- Approved treatments; and
- Vaccine.
On October 7, 2020, CDC also updated its Influenza (Flu) Resources page that contains the following materials for businesses and employers:
- Flu clinic and flu prevention communication tools;
- Education and flu prevention messages; and
- Tools for essential workers.
5
IRS Extends Due Date for Health Coverage Forms Due Date and Other Relief
The Internal Revenue Service announced extensions on certain forms to be provided to individuals.
On October 2, 2020, the Internal Revenue Service announced (Notice 2020-76) that employers, insurers, and other providers of minimum essential coverage have until March 2, 2021 (instead of January 31, 2021) to provide the following 2020 forms to individuals:
- Form 1095-B, Health Coverage; and
- Form 1095-C, Employer-Provided Health Insurance Offer and Coverage, which is filed by Applicable Large Employers (ALEs).
The extension is automatic, no request required, but employers and other coverage providers are encouraged to furnish 2020 information statements as soon as they can. The notice does not extend the due date for filing the 2020 Forms 1094-B, 1095-B, 1094-C, or 1095-C with the IRS.
The notice also provides a final extension for ALEs from penalties under 26 U.S.C. §§ 6721 and 6722 for incorrect or incomplete information if they can prove their good-faith efforts to comply with Form 1095-C:
- § 6721 imposes a penalty for the failure to file correct information returns; and
- § 6722 imposes a penalty for the failure to furnish correct payee statements.
Individual state labor laws
State Specific Labor Law Updates:








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Employment Law Updates: September 2020
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Federal Law Updates: September 2020
Five Federal along with 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.

Labor Law Updates for September 2020
1
CDC Changes its COVID-19 Testing Guidance
The CDC released updated versions of previous guidance.
- Overview of Testing for SARS-CoV-2 (COVID-19) – Summary of considerations and current CDC recommendations regarding SARS-CoV-2 testing. The update in this guidance clarified that asymptomatic persons need to be tested for COVID-19, including close contacts of those with COVID-19, because of asymptomatic and pre-symptomatic transmission. Previously, the CDC stated that people without COVID-19 symptoms do not necessarily need to be tested.
- Guidance for Reopening Buildings After Prolonged Shutdown or Reduced Operation – The update in this guidance addressed mold awareness, monitoring, and remediation during and after prolonged building shutdowns and updated Legionella guidance for people with weakened immune systems and the use of respiratory protection when flushing water systems.
2
Form I-9 Compliance Flexibility Extended Again
Annother extension to the flexibility rules for Form I-9 compliance.
On September 14, 2020, the U.S. Immigration and Customs Enforcement (ICE) announced an extension of the flexibilities in rules related to Form I-9 compliance that was granted earlier this year. Due to the continued COVID-19-related precautions, the Department of Homeland Security (DHS) will extend this policy until November 19, 2020.
On March 19, 2020, due to precautions implemented by employers and employees associated with COVID-19, DHS announced that it would defer the physical presence requirements associated with the Form I-9, Employment Eligibility Verification. 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 Form I-9.
3
DOL Revisions to FFCRA Paid Sick Leave and Expanded Family and Medical Leave Regulations
The U.S. Department of Labor’s Wage and Hour Division (WHD) posted revisions to regulations that implemented the paid sick leave and expanded family and medical leave provisions of the Families First Coronavirus Response Act (FFCRA).
On September 11, 2020, the U.S. Department of Labor’s Wage and Hour Division (WHD) posted revisions to regulations that implemented the paid sick leave and expanded family and medical leave provisions of the Families First Coronavirus Response Act (FFCRA). The revisions made by the new rule clarify workers’ rights and employers’ responsibilities under the FFCRA’s paid leave provisions, in light of the U.S. District Court for the Southern District of New York’s August 3, 2020 decision that found portions of the regulations invalid, and are effective September 16, 2020 when published in the Federal Register.
The revisions do the following:
- Explain the requirement that employees may take FFCRA leave only if work would otherwise be available to them.
- Explain the requirement that an employee must have employer approval to take FFCRA leave intermittently.
- Revise the definition of “health care provider” to include only employees who meet the definition of that term under the Family and Medical Leave Act regulations or who are employed to provide diagnostic services, preventative services, treatment services, or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care.
- Clarify that employees must provide required documentation supporting their need for FFCRA leave to their employers as soon as practicable.
- Correct an inconsistency regarding when employees may be required to provide notice of a need to take expanded family and medical leave to their employers.
The Department issued its initial temporary rule implementing provisions under the FFCRA on April 1, 2020.
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EEOC Updated COVID-19, ADA, Rehabilitation Act, and Other EEO Laws Guidance
EEOC updated the following topics in its What You Should Know About COVID 19 and the ADA, the Rehabilitation Act, and Other EEO Laws.
On September 8, 2020, the U.S. Equal Employment Opportunity Commission updated the following topics in its What You Should Know About COVID 19 and the ADA, the Rehabilitation Act, and Other EEO Laws guidance:
- Disability-Related Inquiries and Medical Exams
- Employer-administered COVID-19 tests.
- Employers asking all employees physically entering the workplace if they have been diagnosed with or tested for COVID-19.
- Employers asking COVID-19 questions specific to one employee and not all.
- Employers asking employees in the workplace about family members with COVID-19 diagnosis.
- Employees who refuse to temperature-taking or answering COVID-19 questions.
- Employers requesting information from employees about whether they are sick or why they were absent from work.
- Confidentiality of Medical Information
- Reporting when an employee has COVID-19 and ADA confidentiality requirements.
- Employee reporting another employee’s COVID-19 symptoms and ADA confidentiality.
- Teleworking employees with COVID-19, reporting, and keeping ADA information confidential.
- Reasonable Accommodation
- Employers inviting employee to currently ask for a future reasonable accommodation.
- Reasonable accommodation for teleworking employees during COVID-19.
- Automatic teleworking as a reasonable accommodation after reopening.
- Returning employee with a disability and a new accommodation request to telework when the prior request to telework was previously denied.
- Excusable delays during the interactive process and COVID-19.
- Federal agencies and delayed timelines due to COVID-19.
- Furloughs and Layoffs
- Additional EEO consideration in furloughs or layoffs.
- Age
- Employer offering flexibilities to other workers cannot treat older comparable workers less favorably based on age.
Disability-Related Inquiries and Medical Exams
A.6. May an employer administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) when evaluating an employee’s initial or continued presence in the workplace? (4/23/20; updated 9/8/20 to address stakeholder questions about updates to CDC guidance)
The ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.” Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take screening steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore an employer may choose to administer COVID-19 testing to employees before initially permitting them to enter the workplace and/or periodically to determine if their presence in the workplace poses a direct threat to others. The ADA does not interfere with employers following recommendations by the CDC or other public health authorities regarding whether, when, and for whom testing or other screening is appropriate. Testing administered by employers consistent with current CDC guidance will meet the ADA’s “business necessity” standard.
Consistent with the ADA standard, employers should ensure that the tests are considered accurate and reliable. For example, employers may review information from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities. Because the CDC and FDA may revise their recommendations based on new information, it may be helpful to check these agency websites for updates. Employers may wish to consider the incidence of false-positives or false-negatives associated with a particular test. Note that a positive test result reveals that an individual most likely has a current infection and may be able to transmit the virus to others. A negative test result means that the individual did not have detectable COVID-19 at the time of testing.
A negative test does not mean the employee will not acquire the virus later. Based on guidance from medical and public health authorities, employers should still require–to the greatest extent possible–that employees observe infection control practices (such as social distancing, regular handwashing, and other measures) in the workplace to prevent transmission of COVID-19.
Note: Questions A.6 and A.8 address screening of employees generally. See Question A.9 regarding decisions to screen individual employees.
A.8. May employers ask all employees physically entering the workplace if they have been diagnosed with or tested for COVID-19? (9/8/20; adapted from 3/27/20 Webinar Question 1)
Yes. Employers may ask all employees who will be physically entering the workplace if they have COVID-19 or symptoms associated with COVID-19, and if they have been tested for COVID-19. Symptoms associated with COVID-19 include, for example, fever, chills, cough, and shortness of breath. The CDC has identified a current list of symptoms.
An employer may exclude those with COVID-19, or symptoms associated with COVID-19, from the workplace because, as EEOC has stated, their presence would pose a direct threat to the health or safety of others. However, for those employees who are teleworking and are not physically interacting with coworkers or others (for example, customers), the employer would generally not be permitted to ask these questions.
A.9. May a manager ask only one employee—as opposed to asking all employees—questions designed to determine if she has COVID-19, or require that this employee alone have her temperature taken or undergo other screening or testing? (9/8/20; adapted from 3/27/20 Webinar Question 3)
If an employer wishes to ask only a particular employee to answer such questions, or to have her temperature taken or undergo other screening or testing, the ADA requires the employer to have a reasonable belief based on objective evidence that this person might have the disease. So, it is important for the employer to consider why it wishes to take these actions regarding this particular employee, such as a display of COVID-19 symptoms. In addition, the ADA does not interfere with employers following recommendations by the CDC or other public health authorities regarding whether, when, and for whom testing or other screening is appropriate.
A.10. May an employer ask an employee who is physically coming into the workplace whether they have family members who have COVID-19 or symptoms associated with COVID-19? (9/8/20; adapted from 3/27/20 Webinar Question 4)
No. The Genetic Information Nondiscrimination Act (GINA) prohibits employers from asking employees medical questions about family members. GINA, however, does not prohibit an employer from asking employees whether they have had contact with anyone diagnosed with COVID-19 or who may have symptoms associated with the disease. Moreover, from a public health perspective, only asking an employee about his contact with family members would unnecessarily limit the information obtained about an employee’s potential exposure to COVID-19.
A.11. What may an employer do under the ADA if an employee refuses to permit the employer to take his temperature or refuses to answer questions about whether he has COVID-19, has symptoms associated with COVID-19, or has been tested for COVID-19? (9/8/20; adapted from 3/27/20 Webinar Question 2)
Under the circumstances existing currently, the ADA allows an employer to bar an employee from physical presence in the workplace if he refuses to have his temperature taken or refuses to answer questions about whether he has COVID-19, has symptoms associated with COVID-19, or has been tested for COVID-19. To gain the cooperation of employees, however, employers may wish to ask the reasons for the employee’s refusal. The employer may be able to provide information or reassurance that they are taking these steps to ensure the safety of everyone in the workplace, and that these steps are consistent with health screening recommendations from CDC. Sometimes, employees are reluctant to provide medical information because they fear an employer may widely spread such personal medical information throughout the workplace. The ADA prohibits such broad disclosures. Alternatively, if an employee requests reasonable accommodation with respect to screening, the usual accommodation process should be followed; this is discussed in Question G.7.
A.12. During the COVID-19 pandemic, may an employer request information from employees who work on-site, whether regularly or occasionally, who report feeling ill or who call in sick? (9/8/20; adapted from Pandemic Preparedness Question 6)
Due to the COVID-19 pandemic, at this time employers may ask employees who work on-site, whether regularly or occasionally, and report feeling ill or who call in sick, questions about their symptoms as part of workplace screening for COVID-19.
A.13. May an employer ask an employee why he or she has been absent from work? (9/8/20; adapted from Pandemic Preparedness Question 15)
Yes. Asking why an individual did not report to work is not a disability-related inquiry. An employer is always entitled to know why an employee has not reported for work.
A.14. When an employee returns from travel during a pandemic, must an employer wait until the employee develops COVID-19 symptoms to ask questions about where the person has traveled? (9/8/20; adapted from Pandemic Preparedness Question 8)
No. Questions about where a person traveled would not be disability-related inquiries. If the CDC or state or local public health officials recommend that people who visit specified locations remain at home for a certain period of time, an employer may ask whether employees are returning from these locations, even if the travel was personal.
Confidentiality of Medical Information
B.5. Suppose a manager learns that an employee has COVID-19, or has symptoms associated with the disease. The manager knows she must report it but is worried about violating ADA confidentiality. What should she do? (9/8/20; adapted from 3/27/20 Webinar Question 5)
The ADA requires that an employer keep all medical information about employees confidential, even if that information is not about a disability. Clearly, the information that an employee has symptoms of, or a diagnosis of, COVID-19, is medical information. But the fact that this is medical information does not prevent the manager from reporting to appropriate employer officials so that they can take actions consistent with guidance from the CDC and other public health authorities.
The question is really what information to report: is it the fact that an employee—unnamed—has symptoms of COVID-19 or a diagnosis, or is it the identity of that employee? Who in the organization needs to know the identity of the employee will depend on each workplace and why a specific official needs this information. Employers should make every effort to limit the number of people who get to know the name of the employee.
The ADA does not interfere with a designated representative of the employer interviewing the employee to get a list of people with whom the employee possibly had contact through the workplace, so that the employer can then take action to notify those who may have come into contact with the employee, without revealing the employee’s identity. For example, using a generic descriptor, such as telling employees that “someone at this location” or “someone on the fourth floor” has COVID-19, provides notice and does not violate the ADA’s prohibition of disclosure of confidential medical information. For small employers, coworkers might be able to figure out who the employee is, but employers in that situation are still prohibited from confirming or revealing the employee’s identity. Also, all employer officials who are designated as needing to know the identity of an employee should be specifically instructed that they must maintain the confidentiality of this information. Employers may want to plan in advance what supervisors and managers should do if this situation arises and determine who will be responsible for receiving information and taking next steps.
B.6. An employee who must report to the workplace knows that a coworker who reports to the same workplace has symptoms associated with COVID-19. Does ADA confidentiality prevent the first employee from disclosing the coworker’s symptoms to a supervisor? (9/8/20; adapted from 3/27/20 Webinar Question 6)
No. ADA confidentiality does not prevent this employee from communicating to his supervisor about a coworker’s symptoms. In other words, it is not an ADA confidentiality violation for this employee to inform his supervisor about a coworker’s symptoms. After learning about this situation, the supervisor should contact appropriate management officials to report this information and discuss next steps.
B.7. An employer knows that an employee is teleworking because the person has COVID-19 or symptoms associated with the disease, and that he is in self-quarantine. May the employer tell staff that this particular employee is teleworking without saying why? (9/8/20; adapted from 3/27/20 Webinar Question 7)
Yes. If staff need to know how to contact the employee, and that the employee is working even if not present in the workplace, then disclosure that the employee is teleworking without saying why is permissible. Also, if the employee was on leave rather than teleworking because he has COVID-19 or symptoms associated with the disease, or any other medical condition, then an employer cannot disclose the reason for the leave, just the fact that the individual is on leave.
B.8. Many employees, including managers and supervisors, are now teleworking as a result of COVID-19. How are they supposed to keep medical information of employees confidential while working remotely? (9/8/20; adapted from 3/27/20 Webinar Question 9)
The ADA requirement that medical information be kept confidential includes a requirement that it be stored separately from regular personnel files. If a manager or supervisor receives medical information involving COVID-19, or any other medical information, while teleworking, and is able to follow an employer’s existing confidentiality protocols while working remotely, the supervisor has to do so. But to the extent that is not feasible, the supervisor still must safeguard this information to the greatest extent possible until the supervisor can properly store it. This means that paper notepads, laptops, or other devices should not be left where others can access the protected information.
Similarly, documentation must not be stored electronically where others would have access. A manager may even wish to use initials or another code to further ensure confidentiality of the name of an employee.
Reasonable Accommodation
D.8. May an employer invite employees now to ask for reasonable accommodations they may need in the future when they are permitted to return to the workplace? (4/17/20; updated 9/8/20 to address stakeholder questions)
Yes. Employers may inform the workforce that employees with disabilities may request accommodations in advance that they believe they may need when the workplace re-opens. This is discussed in greater detail in Question G.6. If advance requests are received, employers may begin the “interactive process” – the discussion between the employer and employee focused on whether the impairment is a disability and the reasons that an accommodation is needed. If an employee chooses not to request accommodation in advance, and instead requests it at a later time, the employer must still consider the request at that time.
D.14. When an employer requires some or all of its employees to telework because of COVID-19 or government officials require employers to shut down their facilities and have workers telework, is the employer required to provide a teleworking employee with the same reasonable accommodations for disability under the ADA or the Rehabilitation Act that it provides to this individual in the workplace? (9/8/20; adapted from 3/27/20 Webinar Question 20)
If such a request is made, the employer and employee should discuss what the employee needs and why, and whether the same or a different accommodation could suffice in the home setting. For example, an employee may already have certain things in their home to enable them to do their job so that they do not need to have all of the accommodations that are provided in the workplace.
Also, the undue hardship considerations might be different when evaluating a request for accommodation when teleworking rather than working in the workplace. A reasonable accommodation that is feasible and does not pose an undue hardship in the workplace might pose one when considering circumstances, such as the place where it is needed and the reason for telework. For example, the fact that the period of telework may be of a temporary or unknown duration may render certain accommodations either not feasible or an undue hardship. There may also be constraints on the normal availability of items or on the ability of an employer to conduct a necessary assessment.
As a practical matter, and in light of the circumstances that led to the need for telework, employers and employees should both be creative and flexible about what can be done when an employee needs a reasonable accommodation for telework at home. If possible, providing interim accommodations might be appropriate while an employer discusses a request with the employee or is waiting for additional information.
D.15. Assume that an employer grants telework to employees for the purpose of slowing or stopping the spread of COVID-19. When an employer reopens the workplace and recalls employees to the worksite, does the employer automatically have to grant telework as a reasonable accommodation to every employee with a disability who requests to continue this arrangement as an ADA/Rehabilitation Act accommodation? (9/8/20; adapted from 3/27/20 Webinar Question 21)
No. Any time an employee requests a reasonable accommodation, the employer is entitled to understand the disability-related limitation that necessitates an accommodation. If there is no disability-related limitation that requires teleworking, then the employer does not have to provide telework as an accommodation. Or, if there is a disability-related limitation but the employer can effectively address the need with another form of reasonable accommodation at the workplace, then the employer can choose that alternative to telework.
To the extent that an employer is permitting telework to employees because of COVID-19 and is choosing to excuse an employee from performing one or more essential functions, then a request—after the workplace reopens—to continue telework as a reasonable accommodation does not have to be granted if it requires continuing to excuse the employee from performing an essential function. The ADA never requires an employer to eliminate an essential function as an accommodation for an individual with a disability.
The fact that an employer temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework for the purpose of protecting their safety from COVID-19, or otherwise chose to permit telework, does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship. These are fact-specific determinations. The employer has no obligation under the ADA to refrain from restoring all of an employee’s essential duties at such time as it chooses to restore the prior work arrangement, and then evaluating any requests for continued or new accommodations under the usual ADA rules.
D.16. Assume that prior to the emergence of the COVID-19 pandemic, an employee with a disability had requested telework as a reasonable accommodation. The employee had shown a disability-related need for this accommodation, but the employer denied it because of concerns that the employee would not be able to perform the essential functions remotely. In the past, the employee therefore continued to come to the workplace. However, after the COVID-19 crisis has subsided and temporary telework ends, the employee renews her request for telework as a reasonable accommodation. Can the employer again refuse the request? (9/8/20; adapted from 3/27/20 Webinar Question 22)
Assuming all the requirements for such a reasonable accommodation are satisfied, the temporary telework experience could be relevant to considering the renewed request. In this situation, for example, the period of providing telework because of the COVID-19 pandemic could serve as a trial period that showed whether or not this employee with a disability could satisfactorily perform all essential functions while working remotely, and the employer should consider any new requests in light of this information. As with all accommodation requests, the employee and the employer should engage in a flexible, cooperative interactive process going forward if this issue does arise.
D.17. Might the pandemic result in excusable delays during the interactive process? (9/8/20; adapted from 3/27/20 Webinar Question 19)
Yes. The rapid spread of COVID-19 has disrupted normal work routines and may have resulted in unexpected or increased requests for reasonable accommodation. Although employers and employees should address these requests as soon as possible, the extraordinary circumstances of the COVID-19 pandemic may result in delay in discussing requests and in providing accommodation where warranted. Employers and employees are encouraged to use interim solutions to enable employees to keep working as much as possible.
D.18. Federal agencies are required to have timelines in their written reasonable accommodation procedures governing how quickly they will process requests and provide reasonable accommodations. What happens if circumstances created by the pandemic prevent an agency from meeting this timeline? (9/8/20; adapted from 3/27/20 Webinar Question 19)
Situations created by the current COVID-19 crisis may constitute an “extenuating circumstance”—something beyond a Federal agency’s control—that may justify exceeding the normal timeline that an agency has adopted in its internal reasonable accommodation procedures.
Furloughs and Layoffs
F.2. What are additional EEO considerations in planning furloughs or layoffs? (9/8/20; adapted from 3/27/20 Webinar Question 13)
The laws enforced by the EEOC prohibit covered employers from selecting people for furlough or layoff because of that individual’s race, color, religion, national origin, sex, age, disability, protected genetic information, or in retaliation for protected EEO activity.
Age
H.2. If an employer is choosing to offer flexibilities to other workers, may older comparable workers be treated less favorably based on age? (9/8/20; adapted from 3/27/20 Webinar Question 12)
No. If an employer is allowing other comparable workers to telework, it should make sure it is not treating older workers less favorably based on their age.
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Deferring Federal Payroll Tax Obligations and COVID-19
The U.S. Deparment of Treasury issued guidance authorizing deferral of withholding, deposit, and payment of Social Security payroll tax obligations for affected payers.
On August 28, 2020, the U.S. Department of the Treasury issued guidance to address President Trump’s August 8 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
- Are 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, 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 and 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.
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