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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.

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Federal Labor Law Updates:

1

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)

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.”

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State Specific Labor Law Updates:

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Labor Law Updates for 2021