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.

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Federal Labor Law Update for September 2021

1

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.

2

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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3

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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4

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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5

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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Individual state labor laws

State Specific Labor Law Updates:

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