Employment Law Updates: January 2021

Federal Law Updates: January 2021

Ten Federal along with D.C and three 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.

January 2021 Law Alert Map

Labor Law Updates for January 2021

1

CDC COVID-19 Workplace Testing Guidelines Emphasize Consent and Disclosure

The CDC updated guidance on COVID-19 Workplace testing.

On January 21, 2021, the Centers for Disease Control (CDC) updated its guidance on COVID-19 workplace testing. The guidance emphasizes that workplace-based testing should not be conducted without employees informed consent so they understand the testing process and may act independently to make choices that align with their values, goals, and preferences.

The guidance details the disclosures that an employer must provide to its employees, for instance:

  • Test manufacturer, name, purpose, and type.
  • How the test will be performed.
  • Known and potential risks of harm, discomforts, and benefits of the test.
  • What a positive or negative test result means, including: 
    • Test reliability and limitations; and
    • Public health guidance to isolate or quarantine at home, if applicable.

The guidance also addresses topics employers should be prepared to discuss with their employees, such as test scheduling and payment, testing sites, communication and interpretation of results, employee privacy, and how to get assistance.

The CDC also provides a SARS-CoV-2 Testing Strategy: Considerations for Non-Healthcare Workplaces website, updated October 21, 2020, which identifies additional, important disclosures that employers should give to employees contemplating testing.

2

DOL Opinion Letters Addressing FLSA Exemptions and Worker Classification

The DOL released a new opinion letter addressing FLSA compliance.

On January 19, 2021, the U.S. Department of Labor released the following new opinion letters addressing Fair Labor Standards Act (FLSA) compliance:

  • FLSA2021-6: Addressing whether the FLSA’s “retail or service establishment” exemption applies to staffing firms that recruit, hire, and place employees on assignments with clients. 
  • FLSA2021-7: Addressing whether certain local small-town and community news source journalists are creative or learned professionals under Section 13(a)(1) of the FLSA. 
  • FLSA2021-8: Addressing whether certain distributors of a manufacturer’s food products are employees or independent contractors under the FLSA. 

FLSA2021-9: Addressing whether requiring tractor-trailer truck drivers to implement legally required safety measures creates control by the motor carrier for worker classification (employee or independent contractor) under the FLSA and whether certain owner-operators are correctly classified as independent contractors.

Back To Top

3

DOL Releases Opinion Letters for Two FLSA Topics: Tipped Workers and Establishment Workers

The DOL released an opinion letter regarding two FLSA topics.

On January 15, 2021, the U.S. Department of Labor released the following Fair Labor Standards Act (FLSA) opinion letters:

  • FLSA 2021-5: This letter provided a step-by-step calculation of overtime pay under the FLSA when a tipped employee works as a server and bartender, receives tips, and also receives automatic gratuities or service charges.
  • FLSA 2021-4: This letter found that a restaurant can implement a nontraditional tip pool under the FLSA’s new regulatory changes, not yet effective but set to be soon, so long as it does not include any managers or supervisors, the employer does not take a tip credit, and it pays the full minimum wage to both the tipped employees (servers) who contribute to the pool and the non-tipped employees (hosts or hostesses) who receive tips from the pool. A nontraditional tip pool includes both tipped employees and non-tipped employees.

FLSA 2021-3: This letter assessed three different entities and whether they satisfy the FLSA’s establishment requirement, which provides an exemption from minimum wage and overtime provisions for workers of an amusement or recreational establishment, and whether an accrual method of accounting may be used to satisfy the FLSA’s Receipts Test.

4

EEOC and Religious Discrimination Clarifications

The EEOC approved revisions to its Compliance Manual Section on Religious Discrimination.

On January 15, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) approved revisions to its Compliance Manual Section on Religious Discrimination. The updated guidance describes how Title VII of the Civil Rights Act of 1964 protects against religious discrimination in the workplace and details legal protections available to religious employers. Importantly, the EEOC states that “the manual does not have the force and effect of law and is not meant to bind the public in any way. It is intended to provide clarity to the public on existing requirements under the law and how the EEOC will analyze these matters in performing its duties.”

5

Replacement Sticker Extending Permanent Resident Card (Green Card) Validity and Form I-9

The USCIS announces it is replacing the current sticker extending the validity of a Form I-551, PRC or Green Card.

On January 12, 2021, the U.S. Citizenship and Immigration Services (USCIS) announced that it is replacing the currently issued sticker that extends the validity of a Form I-551, Permanent Resident Card (PRC), or Green Card, with a revised Form I-797, Notice of Action, receipt notice of Form I-90, Application to Replace Permanent Resident Card. The revised notice will extend the validity of a PRC for 12 months from the “Card Expires” date on the front of the PRC. This change ensures that certain lawful permanent residents have documentation for completing Form I-9, Employment Eligibility Verification.

Employees may present their expired PRC together with this notice as an acceptable List A document that establishes identity and employment authorization for Form I-9 purposes. When completing a Form I-9, employers should enter the information from this document combination in Section 2, under List A:

  • In the Document Number field, enter the card number provided on the expired PRC. 
  • In the Expiration Date field, enter the date that is 12 months from the “Card Expires” date on the expired PRC.
  • In the Additional Information box, write “PRC Ext” and the I-90 receipt number from the Form I-797.

Employers who retain copies of documents should retain copies of both the PRC and Form I-797 with the employee’s Form I-9. Employers may not reverify Lawful Permanent Residents who present this document combination.

Read more about acceptable documents at I-9 Central or in The Handbook for Employers, Guidance for Completing Form I-9.

Back To Top

6

FLSA Opinion Letters: Administrative Employee Exemption and Ministerial Exception

The U.S. DOL announces new opinion letter related to the FLSA.

On January 8, 2021, the U.S. Department of Labor announced the following new opinion letters that provide compliance assistance related to the federal Fair Labor Standards Act (FLSA): 

  • FLSA2021-1: Addressing whether account managers at a life science products manufacturer qualify for the administrative employee exemption under the FLSA. The DOL concluded that the account managers were administrative employees because they met all three requirements, discussed thoroughly in the letter, necessary to qualify for the exemption (from the FLSA minimum wage and overtime pay requirements).

FLSA2021-2: Addressing whether the ministerial exception allows a private religious daycare and preschool to pay its teachers on a salary basis that would not otherwise conform with the requirements of the FLSA. The DOL concluded that the exception would allow the school to do so if the teachers qualify as ministers.

7

OSHA Penalty Amount Increases

The U.S. DOL announces adjustments to the OSHA.

On January 8, 2021, the U.S. Department of Labor announced the following 2021 adjustments to the Occupational Safety and Health Administration (OSHA) civil penalty amounts:

  • Serious violations: minimum of $964 per violation and maximum of $13,653 per violation.
  • Other-than-serious violations: minimum of $0 per violation and maximum of $13,653 per violation.
  • Willful or repeated violations: minimum of $9,639 per violation and maximum of $136,532 per violation.
  • Posting requirements violations: minimum of $0 per violation and maximum of $13,653 per violation.
  • Failure to abate violation: $13,653 per day unabated beyond the abatement date, which is generally limited to 30 days maximum.

These increases apply to penalties assessed after January 15, 2021.

Back To Top

8

Final Rule Clarifies Independent Contractor Status under the Fair Labor Standards Act

DOL announces a final rule clarifying employee vs. independent contractor under the FLSA.

On January 6, 2021, the U.S. Department of Labor, Wage and Hour Division announced a final rule clarifying whether an individual is an employee or an independent contractor under the Fair Labor Standards Act (FLSA). The rule:

  • Reaffirms the “economic reality” test  which determines whether an individual is in business for themselves (independent contractor) or is economically dependent on a potential employer for work (FLSA employee). 
  • Identifies and explains two core factors to determine whether a worker is economically dependent on someone else’s business (employee) or is in business for themselves (independent contractor): 
    • The nature and degree of control over the work; and
    • The worker’s opportunity for profit or loss based on initiative and/or investment.

If those two primary core factors do not point to the same classification, then the rule identifies the following additional factors to determine status:

  • The amount of skill required for the work;
  • The degree of permanence of the working relationship between the worker and the potential employer; and
  • Whether the work is part of an integrated unit of production.

The rule also:

  • Identifies that the actual practice of the worker and the potential employer is more relevant than what may be contractually or theoretically possible.
  • Provides six fact-specific examples applying the factors.

The rule is effective March 8, 2021.  

Back To Top

9

COVID-19 Relief for Employers Using the Automobile Lease Valuation Rule

DOL announces a final rule clarifying employee vs. independent contractor under the FLSA.

On January 4, 2021, the Internal Revenue Service released Notice 2021-07 which provides temporary relief in response to the ongoing COVID-19 pandemic for employers using the automobile lease valuation rule to value an employee’s personal use of an employer-provided automobile for:

  • Income inclusion;
  • Employment tax; and
  • Reporting.

Due solely to the COVID-19 pandemic, if certain requirements are satisfied, employers and employees using the automobile lease valuation rule to determine the value of an employee’s personal use of an employer-provided automobile may instead use the vehicle cents-per-mile valuation rule beginning March 13, 2020.

10

2021 IRS Forms

New publications and forms released by the IRS.

On December 31, 2020 and January 5, 2021, the federal Internal Revenue Service released the following new forms and publications, among many others, for use in 2021:

  • Form W-4 – Employee’s Withholding Certificate
  • Form W-4P – Withholding Certificate for Pension or Annuity Payments
  • Publication 531 – Reporting Tip Income

Individual state labor laws

State Specific Labor Law Updates:

Compliance can weigh down even the most experienced professionals. Our HR Advisors, one click compliance Handbook ,Compliance Database, HR Tools and Employee Training are ready to help navigate HR all year long. Everything included with your AllMyHR™ Solutions

tryhris HR Solutions guarantee and signature

Previous Labor Laws & Information

Back To Top

Federal Law Alert: COVID Tax Credits Extended

covid-tax-relief-credits-extended-allmyhr

COVID Relief Bill: Tax credits for paid leave extended to March 31

A new $900 billion coronavirus relief bill became law and answers the question of whether federal Emergency Paid Sick Leave (EPSL) and Emergency Family and Medical Leave (EFMLA) will be extended.

The answer is yes, but it’s an option, not a requirement. Here’s what employers need to know:

  • Offering EPSL and EFMLA after December 31 will become optional for employers.
  • An employee will no longer be entitled by law to take EPSL or EFMLA, even if they have a qualifying reason.
  • Employers who choose to offer these paid leaves can still receive a tax credit if they follow the current EPSL and EFMLA rules, including job protection.
  • The extension of the tax credit will be available for leaves taken through March 31, 2021.
  • Employees will not get new hours to use—the unused portion of their original allotment that remains on January 1 is how much they will be able to use through March 31. For instance, if an employee who was entitled to 80 hours of EPSL between April 1 and December 31 used 40 of those hours in 2020, they’d have 40 hours left to use between January 1 and March 31, 2021.
  • There is a possible exception when an employee’s EFMLA bank could reset if employers use the calendar year or another fixed FMLA tracking period that starts before March 31 and the DOL fails to readopt the regulations they wrote related to EFMLA. We expect the IRS, DOL, or both, to provide guidance soon that will clear up whether certain employers will need to offer additional hours. We will update Comply as information becomes available.

The new law also extends or revives several other types of economic assistance from previous coronavirus-related legislation, some of which are listed below. These aspects of the law are outside the scope of our services, so we are unable to answer follow-up questions. Some of the notable provisions include:

  • Individual payments of $600 for people with incomes at or below $75,000 and $600 per dependent child, with payments phased out for higher incomes
  • A $300 weekly supplemental unemployment benefit, through March 14, 2021
  • Extension of Pandemic Unemployment Assistance (for gig workers and the self-employed) and Pandemic Emergency Unemployment Compensation (for those who run out of state unemployment insurance benefits), through March 14, 2021
  • Reopening and refunding of the Paycheck Protection Program (see your financial or tax advisor for additional information)

We have many resources related to EPSL and EFMLA available on Comply. We will be updating our content to indicate that the program becomes optional on January 1.

Compliance can weigh down even the most experienced professionals. Our HR Advisors, one click compliance Handbook ,Compliance Database, HR Tools and Employee Training are ready to help navigate HR all year long. Everything included with your AllMyHR™ Solutions

tryhris HR Solutions guarantee and signature

Previous Labor Laws & Information

Employment Law Updates: December 2020

Federal Law Updates: December 2020

Five Federal along with D.C and 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.

December 2020 Law Alert Map

Labor Law Updates for December 2020

1

Pandemic Relief

President Trump signs the 2021 Consolidated Appropriations Act applicable to COVID-19 or another coronavirus with pandemic potential.

On December 27, 2020, President Donald Trump signed the 2021 Consolidated Appropriations Act (US H 133) containing the 2021 Coronavirus Response and Relief Supplemental Appropriations Act applicable to SARS-CoV-2 (COVID-19) or another coronavirus with pandemic potential. Generally, the act:

  • Extends some Coronavirus Aid, Relief, and Economic Security Act (CARES Act) economic assistance. For instance: 
    • Reinstatement of Federal Pandemic Unemployment Compensation (FPUC) in the amount of $300 for weeks of unemployment beginning after December 26, 2020 through March 14, 2021.
    • Extension and modification of temporary Pandemic Unemployment Assistance (PUA) through March 14, 2021 and phasing out on April 5, 2021. The phasing out is for those individuals who remain eligible after March 14, 2021 and have not exhausted their maximum benefits entitlement. However, under the act, no PUA benefits can be paid after April 5.
    • Extension of employee retention tax credit to wages paid before July 1, 2021.
    • Expansion and continuation of the Paycheck Protection Program (PPP).
  • Allows employers to continue taking tax credits for qualifying paid sick and family leave under the Federal Families First Coronavirus Response Act (FFCRA) through March 14, 2021. However, beginning January 1, 2021, employers are not required to provide employees with paid FFCRA leave.

Specific to the FFCRA:

  • Beginning January 1, 2021, employers are not required to provide employees with paid FFCRA leave, which includes both COVID-related emergency paid sick leave (EPSL) and emergency family and medical leave (EFMLA). However, employees may still be entitled to paid sick leave or emergency COVID leave under state or local law.
  • For employers that voluntarily provide paid sick and family and medical leave that would have otherwise qualified as FFCRA leave: 
    • Federal payroll tax credits are extended through March 31, 2021 (if the individual did not exhaust their maximum FFCRA leave allotment and the leave did not expire on December 31, 2020).
    • Employees do not get a new bank of FFCRA hours in 2021 – the amount they have available on January 1, 2021 is how much they can use through March 31, 2021. There is a possible exception if employers use the calendar year or another fixed FMLA tracking period that starts before March 31, 2021.

The IRS and DOL will soon provide more information and detailed guidance on the act’s implementation.

2

IRS Issues 2021 Standard Mileage Rates

The IRS released the 2021 optional standard mileage rates.

On December 22, 2020, the Internal Revenue Service released Notice 2021-02 with the 2021 optional standard mileage rates for taxpayers to use to calculate the deductible costs of operating an automobile for business, charitable, medical, or moving purpose. Beginning on January 1, 2021, the standard mileage rates for the use of a car (also vans, pickups, or panel trucks) will be:

  • 56 cents per mile driven for business use;
  • 16 cents per mile driven for medical, or moving purposes for qualified active duty members of the Armed Forces; and
  • 14 cents per mile driven in service of charitable organizations, which is unchanged from 2020.

The notice also provides that:

  • The maximum standard automobile cost to compute the allowance under a fixed and variable rate plan (FAVR plan) may not exceed $51,100 for automobiles (including trucks and vans)l; and
  • The maximum fair market value of employer-provided automobiles for the fleet-average valuation rule and the vehicle cents-per-mile valuation rule (including trucks and vans) first made available to employees in calendar year 2021 is $51,100.

Back To Top

3

EEOC COVID-19 Guidance and Vaccines

U.S. EEOC updated its “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws”.

On December 16, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) updated its “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Lawspublication by including:

  • A new section for employers and employees about how a COVID-19 vaccination interacts with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and the Genetic Information Nondiscrimination Act (GINA).
  • Information about medical pre-screening questions and employer accommodations for those unable to receive a vaccination.

These new sections are provided below and are directly from the publication.

ADA and Vaccinations

K.1. For any COVID-19 vaccine that has been approved or authorized by the Food and Drug Administration (FDA), is the administration of a COVID-19 vaccine to an employee by an employer (or by a third party with whom the employer contracts to administer a vaccine) a “medical examination” for purposes of the ADA? (12/16/20)

No.  The vaccination itself is not a medical examination.  As the Commission explained in guidance on disability-related inquiries and medical examinations, a medical examination is “a procedure or test usually given by a health care professional or in a medical setting that seeks information about an individual’s physical or mental impairments or health.”  Examples include “vision tests; blood, urine, and breath analyses; blood pressure screening and cholesterol testing; and diagnostic procedures, such as x-rays, CAT scans, and MRIs.”  If a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination.

Although the administration of a vaccination is not a medical examination, pre-screening vaccination questions may implicate the ADA’s provision on disability-related inquiries, which are inquiries likely to elicit information about a disability.  If the employer administers the vaccine, it must show that such pre-screening questions it asks employees are “job-related and consistent with business necessity.”  

K.2. According to the CDC, health care providers should ask certain questions before administering a vaccine to ensure that there is no medical reason that would prevent the person from receiving the vaccination. If the employer requires an employee to receive the vaccination from the employer (or a third party with whom the employer contracts to administer a vaccine) and asks these screening questions, are these questions subject to the ADA standards for disability-related inquiries? (12/16/20)

Yes. Pre-vaccination medical screening questions are likely to elicit information about a disability. This means that such questions, if asked by the employer or a contractor on the employer’s behalf, are “disability-related” under the ADA. Thus, if the employer requires an employee to receive the vaccination, administered by the employer, the employer must show that these disability-related screening inquiries are “job-related and consistent with business necessity.”  To meet this standard, an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others. 

By contrast, there are two circumstances in which disability-related screening questions can be asked without needing to satisfy the “job-related and consistent with business necessity” requirement. First, if an employer has offered a vaccination to employees on a voluntary basis (i.e. employees choose whether to be vaccinated), the ADA requires that the employee’s decision to answer pre-screening, disability-related questions also must be voluntary. If an employee chooses not to answer these questions, the employer may decline to administer the vaccine but may not retaliate against, intimidate, or threaten the employee for refusing to answer any questions. Second, if an employee receives an employer-required vaccination from a third party that does not have a contract with the employer, such as a pharmacy or other health care provider, the ADA “job-related and consistent with business necessity” restrictions on disability-related inquiries would not apply to the pre-vaccination medical screening questions.  

The ADA requires employers to keep any employee medical information obtained in the course of the vaccination program confidential.

K.3. Is asking or requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry? (12/16/20)

No. There are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related. Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry. However, subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be “job-related and consistent with business necessity.” If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.

Back To Top

ADA and Title VII Issues Regarding Mandatory Vaccinations

K.4. Where can employers learn more about Emergency Use Authorizations (EUA) of COVID-19 vaccines? (12/16/20)

Some COVID-19 vaccines may only be available to the public for the foreseeable future under EUA granted by the FDA, which is different than approval under FDA vaccine licensure. The FDA has an obligation to:

[E]nsure that recipients of the vaccine under an EUA are informed, to the extent practicable under the applicable circumstances, that FDA has authorized the emergency use of the vaccine, of the known and potential benefits and risks, the extent to which such benefits and risks are unknown, that they have the option to accept or refuse the vaccine, and of any available alternatives to the product.

The FDA says that this information is typically conveyed in a patient fact sheet that is provided at the time of the vaccine administration and that it posts the fact sheets on its website. More information about EUA vaccines is available on the FDA’s EUA page

K.5. If an employer requires vaccinations when they are available, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a disability? (12/16/20)

The ADA allows an employer to have a qualification standard that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” However, if a safety-based qualification standard, such as a vaccination requirement, screens out or tends to screen out an individual with a disability, the employer must show that an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” Employers should conduct an individualized assessment of four factors in determining whether a direct threat exists: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm. A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite.  If an employer determines that an individual who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace, or take any other action, unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.

If there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace, but this does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities. For example, if an employer excludes an employee based on an inability to accommodate a request to be exempt from a vaccination requirement, the employee may be entitled to accommodations such as performing the current position remotely. This is the same step that employers take when physically excluding employees from a worksite due to a current COVID-19 diagnosis or symptoms; some workers may be entitled to telework or, if not, may be eligible to take leave under the Families First Coronavirus Response Act, under the FMLA, or under the employer’s policies.

Managers and supervisors responsible for communicating with employees about compliance with the employer’s vaccination requirement should know how to recognize an accommodation request from an employee with a disability and know to whom the request should be referred for consideration. Employers and employees should engage in a flexible, interactive process to identify workplace accommodation options that do not constitute an undue hardship (significant difficulty or expense). This process should include determining whether it is necessary to obtain supporting documentation about the employee’s disability and considering the possible options for accommodation given the nature of the workforce and the employee’s position. The prevalence in the workplace of employees who already have received a COVID-19 vaccination and the amount of contact with others, whose vaccination status could be unknown, may impact the undue hardship consideration. In discussing accommodation requests, employers and employees also may find it helpful to consult the Job Accommodation Network (JAN) website as a resource for different types of accommodations. JAN’s materials specific to COVID-19 are at https://askjan.org/topics/COVID-19.cfm.  

Employers may rely on CDC recommendations when deciding whether an effective accommodation that would not pose an undue hardship is available, but as explained further in Question K.7., there may be situations where an accommodation is not possible. When an employer makes this decision, the facts about particular job duties and workplaces may be relevant. Employers also should consult applicable Occupational Safety and Health Administration standards and guidance. Employers can find OSHA COVID-specific resources at: www.osha.gov/SLTC/covid-19/.

Managers and supervisors are reminded that it is unlawful to disclose that an employee is receiving a reasonable accommodation or retaliate against an employee for requesting an accommodation.

Back To Top

K.6. If an employer requires vaccinations when they are available, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a sincerely held religious practice or belief? (12/16/20)

Once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccination, the employer must provide a reasonable accommodation for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII of the Civil Rights Act.  Courts have defined “undue hardship” under Title VII as having more than a de minimis cost or burden on the employer. EEOC guidance explains that because the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.  If, however, an employee requests a religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.

K.7. What happens if an employer cannot exempt or provide a reasonable accommodation to an employee who cannot comply with a mandatory vaccine policy because of a disability or sincerely held religious practice or belief? (12/16/20)

If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace.  This does not mean the employer may automatically terminate the worker.  Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.

Back To Top

Title II of the Genetic Information Nondiscrimination Act and Vaccinations

K.8. Is Title II of GINA implicated when an employer administers a COVID-19 vaccine to employees or requires employees to provide proof that they have received a COVID-19 vaccination? (12/16/20)

No. Administering a COVID-19 vaccination to employees or requiring employees to provide proof that they have received a COVID-19 vaccination does not implicate Title II of GINA because it does not involve the use of genetic information to make employment decisions, or the acquisition or disclosure of “genetic information” as defined by the statute. This includes vaccinations that use messenger RNA (mRNA) technology, which will be discussed more below. As noted in Question K.9. however, if administration of the vaccine requires pre-screening questions that ask about genetic information, the inquiries seeking genetic information, such as family members’ medical histories, may violate GINA.

Under Title II of GINA, employers may not (1) use genetic information to make decisions related to the terms, conditions, and privileges of employment, (2) acquire genetic information except in six narrow circumstances, or (3) disclose genetic information except in six narrow circumstances. 

Certain COVID-19 vaccines use mRNA technology. This raises questions about genetics and, specifically, about whether such vaccines modify a recipient’s genetic makeup and, therefore, whether requiring an employee to get the vaccine as a condition of employment is an unlawful use of genetic information. The CDC has explained that the mRNA COVID-19 vaccines “do not interact with our DNA in any way” and “mRNA never enters the nucleus of the cell, which is where our DNA (genetic material) is kept.” (See https://www.cdc.gov/coronavirus/2019-ncov/vaccines/different-vaccines/mrna.html for a detailed discussion about how mRNA vaccines work).  Thus, requiring employees to get the vaccine, whether it uses mRNA technology or not, does not violate GINA’s prohibitions on using, acquiring, or disclosing genetic information.

K.9. Does asking an employee the pre-vaccination screening questions before administering a COVID-19 vaccine implicate Title II of GINA? (12/16/20)

Pre-vaccination medical screening questions are likely to elicit information about disability, as discussed in Question K.2., and may elicit information about genetic information, such as questions regarding the immune systems of family members.  It is not yet clear what screening checklists for contraindications will be provided with COVID-19 vaccinations.

GINA defines “genetic information” to mean: 

  • Information about an individual’s genetic tests;
  • Information about the genetic tests of a family member;
  • Information about the manifestation of disease or disorder in a family member (i.e., family medical history);
  • Information about requests for, or receipt of, genetic services or the participation in clinical research that includes genetic services by the an individual or a family member of the individual; and
  • Genetic information about a fetus carried by an individual or family member or of an embryo legally held by an individual or family member using assisted reproductive technology.

     

If the pre-vaccination questions do not include any questions about genetic information (including family medical history), then asking them does not implicate GINA. However, if the pre-vaccination questions do include questions about genetic information, then employers who want to ensure that employees have been vaccinated may want to request proof of vaccination instead of administering the vaccine themselves. 

GINA does not prohibit an individual employee’s own health care provider from asking questions about genetic information, but it does prohibit an employer or a doctor working for the employer from asking questions about genetic information. If an employer requires employees to provide proof that they have received a COVID-19 vaccination from their own health care provider, the employer may want to warn the employee not to provide genetic information as part of the proof. As long as this warning is provided, any genetic information the employer receives in response to its request for proof of vaccination will be considered inadvertent and therefore not unlawful under GINA.  See 29 CFR 1635.8(b)(1)(i) for model language that can be used for this warning.

Back To Top

4

CDC, COVID-19, and Options to Reduce Quarantine

U.S. Centers for Disease Control (CDC) updated its COVID-19 quarantine options by suggesting quarantine periods shorter than 14-days.

On December 2, 2020, the U.S. Centers for Disease Control (CDC) updated its COVID-19 quarantine options by suggesting quarantine periods shorter than 14-days. This is because a 14-day quarantine can impose personal burdens that may affect physical and mental health as well as cause economic hardship that may reduce compliance. Therefore, based on local circumstances and resources, the CDC offers the following options as acceptable alternatives to shorten quarantine:

  • Quarantine can end after ten days without testing and if no symptoms have been reported during daily monitoring.
  • When diagnostic testing resources are sufficient and available, then quarantine can end after seven days if a diagnostic specimen tests negative and if no symptoms were reported during daily monitoring. The specimen may be collected and tested 48 hours before ending quarantine (for instance, in anticipation of testing delays) but quarantine cannot end earlier than after seven days.

5

New Opinion Letters Addressing FLSA

DOL announces new opinion letters addressing compliance related to FLSA.

On November 30, 2020, the U.S. Department of Labor (DOL) released the following new opinion letters addressing Fair Labor Standards Act (FLSA) compliance:

  • FLSA2020-17: Addressing whether an employee’s regular rate of pay, who is paid on a piece-rate basis, may be calculated by dividing total earnings by the number of productive and nonproductive hours worked during the workweek in the absence of a specific agreement with the employee to use such calculation.
  • FLSA2020-18: Addressing whether insect farming qualifies as agriculture under the FLSA and whether certain workers employed by an insect farming operation may be exempt from overtime pay requirements.

An opinion letter is an official, written opinion by the DOL’s Wage and Hour Division (WHD) on how a particular law applies in specific circumstances presented by the person or entity that requested the letter.

Individual state labor laws

State Specific Labor Law Updates:

Compliance can weigh down even the most experienced professionals. Our HR Advisors, one click compliance Handbook ,Compliance Database, HR Tools and Employee Training are ready to help navigate HR all year long. Everything included with your AllMyHR™ Solutions

tryhris HR Solutions guarantee and signature

Previous Labor Laws & Information

Back To Top

New I-9 Policy Due to Covid 19

Federal Law Alert: New I-9 Policy Due to COVID-19

If you’re wondering how Law Updates such as this will effect your business and have specific questions, our HR Experts are ready to help guide you, your company and your staff. 

The Department of Homeland Security (DHS) issued a temporary policy to allow employers to accept expired List B documents when completing the Form I-9 to begin May 1. This policy is intended to accommodate for the fact that many people are unable to renew their driver’s licenses or state ID cards at this time due to stay-at-home orders. Some states have extended the expiration of driver’s licenses and state identification cards, which are common List B documents, yet others have not. The temporary policy addresses both situations.

covid 19 compliance

Temporary Extension for Expired List B Documents That Have Not Been Extended

List B documents that expire on or after March 1, 2020, and have not been extended by the state may be treated the same as if the employee presented a valid receipt for an acceptable document for Form I-9 purposes.

If an employee presents their driver’s license that expired on or after March 1 and it was not extended by the state, employers should:

  • Record the documentation information in Section 2 under List B, as applicable; and
  • Enter the word “COVID-19” in the Additional Information field.

When the DHS ends this temporary policy, employers must require the employee to provide a valid unexpired document within 90 days. (The replacement for the expired document is preferred, but employees may choose to present a different document or documents to satisfy the I-9 requirements.)

At that time, in the Section 2 Additional Information field, employers must:

  • Record the number and other required document information from the actual document presented; and
  • Initial and date the change.

Procedure for List B Documents That Have Been Extended

If the employee’s List B identity document expired on or after March 1, 2020, and the issuing authority has extended the document expiration date because of COVID-19, the document is acceptable as a List B document for Form I-9 (not as a receipt) during the extension timeframe specified by the issuing authority. In that case, the employer must:

  • Enter the document’s expiration date in Section 2; and
  • Enter “COVID-19 EXT” in the Additional Information field.

Employers may also attach a copy of a webpage or other notice indicating that the issuing authority has extended the documents. Employers can confirm that their state has auto-extended the expiration date of state IDs and driver’s licenses by checking the state Motor Vehicle Administration or Department of Motor Vehicles website.

The employee is not required to present a valid unexpired List B document later.

E-Verify Changes

Employers participating in E-Verify should use the employee’s expired List B document number from Section 2 of the Form I-9 to create an E-Verify case as usual within three days of the date of hire. Even if a state has automatically extended the employee’s driver’s license because of COVID-19, employers should enter the expiration date as printed on the employee’s document when creating the E-Verify case.

Reminders & Additional Information

Employers are required to complete an employee’s Form I-9 within three days of their first day of work. The DHS has temporarily suspended the physical presence requirement for fully remote workplaces.

Helpful questions and answers on temporary I-9 and E-Verify policies have been created by the U.S. Citizenship and Immigration Services and are available here.

Complying with Covid-19, and all compliance, is easiest when you have professionals to rely on and the most up to date information at your fingertips. Our services were built for small businesses. 

Previous Labor Laws & Information

Paycheck Protection Program: Preparing Your Application

Our HR Advisors are Ready to Help You Navigate Covid-19 compliance.

Paycheck Protection Program: Preparing Your Application

Make sure you have the proper information when applying for the Paycheck Protection Program. Most bank application sites are complete or nearing completion. We recommend that you begin preparing and gathering documentation that will make the process as fast and easy as possible.

What is the Small Business Paycheck Protection Program?

This Government funded relief program provides small businesses with funds to pay up to 8 weeks of payroll costs, including benefits. Funds can also be used to pay interest on mortgages, rent, and utilities.  (Per treasury.gov as of April 7, 2020)

For full details regarding this program, see the quick guide the U.S. Treasury has provided.

1. How to Determine Your Maximum Loan Amount

The maximum loan amount is based on 2.5X your 2019 average monthly payroll costs and is subject to a $10 million cap. Payroll costs will be capped at $100,000 annualized for each employee.

If you are a seasonal or new business, you will use different applicable time periods for your calculation.

For seasonal employers:

  • the period between February 15, 2019 through June 30, 2019 or;
  • at the election of the borrower, March 1, 2019 through June 30, 2019
  • For businesses not in operation during the period between February 15, 2019 and June 30, 2019
    • The period between January 1, 2020 and February 29, 2020

2. How to Determine Your Payroll Costs

Depending on your business type, one or more of the following forms of documentation are required for payroll calculation and verification. You will need to include these documents with your application.

Employers:

IRS Form 941 (Quarterly Form)

  • Line 1: Lists number of employees who received wages, tips, or other compensation for the pay period
  • Line 2: Lists wages, tips & other compensation (will need to sum line 2 for the last 4 quarters to arrive at annual total)
  • Line 12: Total taxes after adjustments & credits (this number is excluded from the payroll costs calculation)

IRS Form 944 (Annual Form)

  • Line 1: Lists wages, tips, & other compensation for the entire year
  • Line 7: Total taxes after adjustments & credits (this number is excluded from the payroll costs calculation)

Contractors:

Sole Proprietors:

IRS Form 1040

  • Schedule C – line 31: Net profit or (loss)

What if I Don't Have This Documentation?

For borrowers that do not have the above documentation, you must provide other supporting documentation, such as bank records, sufficient to demonstrate the qualifying payroll amount.

Additional Guidance and Details

For more detailed information and additional guidance on how to appropriately calculate payroll costs, employers can find all the latest information at home.treasury.gov.

Additional documents may be requested as required

SPECIAL Employment Law Updates | March 2020

As Coronavirus takes over our daily lives, the Federal and State Government release statements, information and business loans. We wait to hear final approval from the Senate for the proposed FMLA temporary updates for the Coronavirus Relief Bill and will update you here as soon as it passes.

Every industry is drowning in HR questions and our HR Advisors are prepared for every one of yours. Our online training keeps your employees learning and engaged remotely. We are ready to help you navigate during this crisis and all year long, for only $99 a month

March 2020 Employment Law Updates

19 States so far have released Employment Law Updates and Coronavirus Response Statements. 

Employment Law Updates: March 2020

1

SBA Disaster Assistance in Response to COVID-19

Specific States and Territories are offering low interest business loans. These locations are expanding, continue to check back if your area isn’t listed yet.

The U.S. Small Business Administration (SBA) is offering designated states and territories low-interest federal disaster loans for working capital to small businesses suffering substantial economic injury as a result of the Coronavirus (COVID-19). Upon a request received from a state’s or territory’s Governor, SBA will issue under its own authority, as provided by the Coronavirus Preparedness and Response Supplemental Appropriations Act that was recently signed by the President, an Economic Injury Disaster Loan declaration.

Read more on the SBA’s website.

2

IRS, Coronavirus (COVID-19), and High-Deductible Health Plans

The Internal Revenue Service (IRS) released Notice 2020-15 for high deductible health plans and expenses related to 2019 novel coronavirus (COVID-19).

On March 11, 2020, the Internal Revenue Service (IRS) released Notice 2020-15 for high deductible health plans and expenses related to 2019 novel coronavirus (COVID-19) stating that, until further guidance is released, a health plan that otherwise satisfies the requirements of a high deductible health plan (HDHP) under I.R.C. § 223(c)(2)(A) will not fail to be an HDHP merely because it provides health benefits associated with testing for and treatment of COVID-19 without a deductible, or with a deductible below the minimum deductible (self only or family) for an HDHP. Therefore, an individual covered by the HDHP will not be disqualified from being an eligible individual under § 223(c)(1) who may make tax-favored contributions to a health savings account (HSA). 

This does not modify previous guidance with respect to the requirements of an HDHP in any manner other than with respect to the relief for testing for and treatment of COVID-19. Vaccinations continue to be considered preventive care under § 223(c)(2)(C) for purposes of determining whether a health plan is an HDHP. Rather, the notice provides flexibility to HDHPs to provide health benefits for testing and treatment of COVID-19 without application of a deductible or cost sharing. Individuals participating in HDHPs or any other type of health plan should consult their particular health plan regarding the health benefits for testing and treatment of COVID-19 provided by the plan, including the potential application of any deductible or cost sharing.

Read Notice 2020-15.

3

CDC, OSHA, and Coronavirus

CDC and OSHA Response to COVID-19. Official Posters, Guidance, Public Health Response. 

In response to the COVID-19 (coronavirus) outbreak, the U.S. Centers for Disease Control (CDC) issued:

  • Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease, providing recommended workplace strategies for employers and guidance on how to decrease COVID-19 spread, how to respond to outbreaks, and additional resources; and
  • Public Health Response to the Coronavirus Disease 2019 Outbreak, providing a chronological timeline and summary of the virus, cases reported in the United States, and the agency’s public health response to the illness.

The CDC has also created the following posters for download:

Additionally, the U.S. Occupational Safety and Health Administration (OSHA) has created a COVID-19 website for workers and employers addressing the disease, providing guidance, and other resources for preventing exposure to and infection with the virus. We recommend that employers review the CDC and OSHA websites frequently, as the COVID-19 outbreak continues to develop.

4

HIPAA and COVID-19

The Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services (HHS) released a bulletin to ensure awareness of the ways that patient information may be shared under the HIPAA Privacy Rule.

In February 2020, the Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services (HHS) released a bulletin to ensure that Heath Insurance Portability and Accountability Act (HIPAA) covered entities, and their business associates, are aware of the ways that patient information may be shared under the HIPAA Privacy Rule in an outbreak of infectious disease or other emergency situation. The bulletin also reminds covered entities that the protections of the Privacy Rule are not set aside during an emergency and discusses the following HIPAA topics:

  • Sharing patient information
  • Treatment.
  • Public health activities.
  • Disclosures to family, friends, and others involved in an individual’s care and for notification.
  • Disclosures to prevent a serious and imminent threat.
  • Disclosure to the media or others not involved in the care of the patient/notification.
  • Minimum necessary (for most disclosures, a covered entity must make reasonable efforts to limit the information disclosed to that which is the “minimum necessary” to accomplish the purpose).
  • Safeguarding patient information.
  • HIPAA’s application to only covered entities and business associates.

The bulletin also provides links to the following resources:

HIPAA and Public Health, please visit: https://www.hhs.gov/hipaa/for-professionals/special-topics/public-health/index.html

General information on understanding the HIPAA Privacy Rule may be found at: https://www.hhs.gov/hipaa/for-professionals/privacy/index.html

Review the bulletin.

5

ERISA and Actual Knowledge

The Supreme Court further defines the intersection of “actual knowledge” and prudent investments in Intel Corporation Investment Policy Committee et al. v. Sulyma, under the Employee Retirement Income Security Act (ERISA) and within retirement plan manager duties.

On February 26, 2020, the Supreme Court of the United States (SCOTUS) unanimously determined the intersection of “actual knowledge” and prudent investments in Intel Corporation Investment Policy Committee et al. v. Sulyma, under the Employee Retirement Income Security Act (ERISA) and within retirement plan manager duties.

Under ERISA, plan fiduciaries’ (which include plan trustees, plan administrators, and members of a plan’s investment committee) primary responsibilities are to run the plan solely in the interest of participants and beneficiaries and for the exclusive purpose of providing benefits and paying plan expenses. Fiduciaries must also act prudently and must diversify the plan’s investments in order to minimize the risk of large losses. For beneficiaries, ERISA requires that they bring a lawsuit against a plan fiduciary for imprudent investments within six years; however, if the beneficiary has “actual knowledge” of the imprudent investments, then the suit must commence within three years of gaining that knowledge.

In this case, Christopher Sulyma was an Intel Corporation employee from 2010 to 2012 who sued the corporation in October 2015 claiming it violated ERISA by investing large portions of plan assets in imprudent investments, resulting in significant losses for plan participants. However, Sulyma filed his case more than three years after the administrators disclosed their investment decisions to him, so the administrators argued his claim was untimely. Although the claim was filed within six years of the alleged breaches, it was more than three years after petitioners had disclosed their investment decisions to Sulyma and thus he had actual knowledge and missed the deadline to file his suit; therefore, Intel argued there should be no suit (it was untimely).

The court held that Sulyma did not have actual knowledge of the imprudent investments triggering the three-year shortened timeframe to bring a lawsuit. The court detailed that although Sulyma visited the website that hosted the disclosures many times during his employment, he testified that he did not remember reviewing the relevant disclosures and that he was unaware of the allegedly imprudent investments while working at Intel. The court went on to clarify that, “[i]f a plaintiff is not aware of a fact, he does not have ‘actual knowledge’ of that fact however close at hand the fact might be . . .” and “As presently written [ERISA] requires more than evidence of disclosure alone. That all relevant information was disclosed to the plaintiff is no doubt relevant in judging whether he gained knowledge of that information. [But to meet ERISA’s] ‘actual knowledge’ requirement . . . the plaintiff must in fact have become aware of that information.” In other words, SCOTUS held that Sulyma could have known about the investments from the disclosures, but according to his testimony he did not and therefore did not file his lawsuit too late.

The decision took effect on February 26, 2020.

Read about ERISA fiduciary responsibilities and SCOTUS’s decision.

6

Electronic Reporting OSHA Form 300A

Those that meet any of the following criteria are not required to submit their information for the Occupational Safety and Health Administration (OSHA) Form 300A data.

The deadline for electronically reporting the Occupational Safety and Health Administration (OSHA) Form 300A data for calendar year 2019 was March 2, 2020. However, not all establishments need to submit their OSHA 300A Data. For example, those that meet any of the following criteria are not required to submit their information:

  • The establishment’s peak employment during the previous calendar year was 19 or fewer, regardless of the establishment’s industry.
  • The establishment’s industry is on this list, regardless of the size of the establishment.
  • The establishment had a peak employment of between 20 and 249 employees during the previous calendar year and the establishment’s industry is not on this list.

 

Note, these criteria apply at the establishment level, not to the company as a whole.

The collection of calendar year 2019 data and beyond will include the collection of each establishment’s Employer Identification Number (EIN). 

Read more about OSHA injury and illness recordkeeping and reporting requirements here.

Download all March 2020 Law Updates.

Individual State Labor Laws

Download State Specific Labor Law Updates:

Compliance can weigh down even the most experienced professionals. Our tryHRIS HR Advisors, one click compliance Handbook ,Compliance Database, HR Tools and Employee Training are ready to help navigate HR all year long. All for less than a latte a day.

tryhris HR Solutions guarantee and signature

Previous Labor Laws & Information