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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.

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Federal Labor Law Updates:

1

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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2

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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3

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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4

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.

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State Specific Labor Law Updates:

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Labor Law Updates for 2021