Employment Law Updates: November 2021

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

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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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:

  1. COVID-19 Vaccinations: EEO Overview (K.1 and K.3)
  2. The ADA and COVID-19 Vaccinations (K.4 and K.9)
  3. Title VII and COVID-19 Vaccinations (K.13)
  4. GINA and COVID-19 Vaccinations (K.15)
  5. 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: September 2021

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.

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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Federal Law Alert: September 2021

Federal Law Alert: September 2021

One Federal Law Alert has been issued so far this month. 

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Employment Law Updates: August 2021

Employment Law Updates: August 2021

One Federal and two 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.

state map

Federal Labor Law Update for August 2021

1

COVID-19 Booster Shots

On August 18, 2021, the U.S. Department of Health and Human Services (HHS) released a statement on its plan for COVID-19 booster shots, “to maximize vaccine-induced protection and prolong its durability.” Subject to FDA approval, the booster—a third dose of either the Pfizer or Modern vaccine—will be offered starting September 20 and will first be available for those who were fully vaccinated eight months prior (January 2021). That way, those who were fully vaccinated earliest in the vaccination rollout, including many health care providers, nursing home residents, and other seniors, will likely be eligible for a booster. The HHS also anticipates booster shots are likely for people who received the Johnson & Johnson (J&J) vaccine, but its rollout didn’t start in the U.S. until March 2021, and the department is waiting for more data on J&J before announcing that booster plan.

2

OSHA Updates Coronavirus Guidance

On August 13, 2021, the Occupational Safety and Health Administration issued updated guidance to help employers protect workers from the coronavirus. The updated guidance reflects developments in science and data, including the Centers for Disease Control and Prevention’s updated COVID-19 guidance issued July 27, 2021.

The updated guidance expands information on appropriate measures for protecting workers in higher-risk workplaces with mixed-vaccination status workers, particularly for industries such as manufacturing; meat, seafood and poultry processing; high volume retail and grocery; and agricultural processing, where there is often prolonged close contact with other workers and/or non-workers.

OSHA’s latest guidance:

  • Recommends that fully vaccinated workers in areas of substantial or high community transmission wear masks in order to protect unvaccinated workers;
  • Recommends that fully vaccinated workers who have close contacts with people with coronavirus wear masks for up to 14 days unless they have a negative coronavirus test at least three to five days after such contact;
  • Clarifies recommendations to protect unvaccinated workers and other at-risk workers in manufacturing, meat and poultry processing, seafood processing and agricultural processing; and  
  • Links to the latest guidance on K-12 schools and CDC statements on public transit.


According to OSHA, vaccination is the optimal step to protect workers and encourages employers to engage with workers and their representatives to implement multi-layered approaches to protect unvaccinated or otherwise at-risk workers from the coronavirus.

OSHA also reviews the COVID-19 Healthcare Emergency Temporary Standard every 30-days and its safeguards remain more important than ever. After reviewing the latest guidance, science and data, and consulting with the CDC and partners, OSHA determined the requirements of the healthcare ETS remain necessary to address the danger of the coronavirus in healthcare. OSHA will continue to monitor and assess the need for changes in the healthcare ETS each month.

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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.

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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.

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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.

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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.

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Individual state labor laws

State Specific Labor Law Updates:

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Employment Law Updates: May 2021

Employment Law Updates: May 2021

Three Federal and six 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 May 2021

1

OSHA Endorses CDC Guidance for Fully Vaccinated Workers and Masks

According to the Occupational Safety and Health Administration’s (OSHA) website providing information about protecting workers against COVID-19 in the workplace, “The Centers for Disease Control and Prevention (CDC) issued new guidance relating to recommended precautions for people who are fully vaccinated, which is applicable to activities outside of healthcare and a few other environments. OSHA is reviewing the recent CDC guidance and will update its materials on its website accordingly. Until those updates are complete, please refer to the CDC guidance for information on measures appropriate to protect fully vaccinated workers.” According to the CDC’s guidance updated on May 13, 2021, fully vaccinated people no longer need to wear a mask or physically distance in any setting, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.

Fully Vaccinated People and Masks

On May 13, 2021, the Centers for Disease Control and Prevention announced that people who are fully vaccinated against COVID-19 can:

  • Resume activities that they did prior to the pandemic; and
  • Do so without wearing a mask or physically distancing, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.

According to the CDC, people are generally considered fully vaccinated:

  • Two weeks after their second dose in a two-dose series, such as the Pfizer or Moderna vaccines; or
  • Two weeks after a single-dose vaccine, such as Johnson & Johnson’s Janssen vaccine.

Some states have enacted strict laws requiring face masks, but they may be lifted in the near future. For instance, according to a California Department of Public Health press release from May 3, 2021, the state continues to require the use of face coverings, regardless of vaccination status, in indoor settings outside of one’s home.

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2

HHS and Protections Against Sexual Orientation and Gender Identity Discrimination in Health Care

On May 10, 2021, the U.S. Department of Health and Human Services (HHS) announced that the Office for Civil Rights (OCR) will interpret and enforce Section 1557 of the Affordable Care Act (Section 1557) to prohibit discrimination based on sexual orientation and gender identity. Section 1557 prohibits discrimination based on race, color, national origin, sex (this now includes sexual orientation and gender identity), age, or disability in covered health programs or activities. Additionally, covered entities are prohibited from discriminating against consumers based on sexual orientation or gender identity.

This announcement was made in consideration of a 2020 Supreme Court of the United States (SCOTUS) decision in Bostock v. Clayton County that held Title VII’s prohibition on sex discrimination in employment necessarily included discrimination when it is based on sexual orientation and gender identity. This ruling conflicted with the former administration’s narrow approach to the definition of discrimination based on sex. According to HHS Secretary Xavier Becerra,

“[T]he Supreme Court has made clear that people have a right not to be discriminated against on the basis of sex and receive equal treatment under the law, no matter their gender identity or sexual orientation. That’s why today HHS announced it will act on related reports of discrimination. Fear of discrimination can lead individuals to forgo care, which can have serious negative health consequences. It is the position of the Department of Health and Human Services that everyone—including LGBTQ people—should be able to access health care, free from discrimination or interference, period.

The OCR enforces Section 1557 to protect the civil rights of individuals who access (or seek to access) covered health programs or activities and, “[d]iscrimination in health care impacts health outcomes. Research shows that one quarter of LGBTQ people who faced discrimination postponed or avoided receiving needed medical care for fear of further discrimination.”

“The mission of our Department is to enhance the health and well-being of all Americans, no matter their gender identity or sexual orientation. All people need access to health care services to fix a broken bone, protect their heart health, and screen for cancer risk,” said Dr. Rachel Levine, Assistant Secretary for Health.  “No one should be discriminated against when seeking medical services because of who they are.”  

“OCR’s mission is to protect people from all forms of discrimination,” said Robinsue Frohboese, Acting OCR Director. “The OCR will follow Supreme Court precedent and federal law, and ensure that the law’s protections extend to those individuals who are discriminated against based on sexual orientation and gender identity.” Therefore, beginning May 10, 2021, and consistent with Bostock, the OCR will interpret Section 1557’s prohibition on discrimination based on sex to include discrimination based on sexual orientation and gender identity. 

3

DOL Withdraws Independent Contractor Rule from Previous Administration

On May 5, 2021, the U.S. Department of Labor (DOL) announced a final rule withdrawing the Independent Contractor Status Under the Fair Labor Standards Act final rule (Independent Contractor Rule) that was set to take effect in March 2021 but was postponed. According to the DOL, it is withdrawing the Independent Contractor Rule for several reasons, including:

  • The rule conflicted with the FLSA’s text and purpose, as well as relevant judicial precedent.
  • The two core factors the rule prioritized for determining employee status under the FLSA undermined the economic realities test and court decisions requiring analysis of the totality of the circumstances related to the employment relationship.
  • Application of the rule narrowed the facts and considerations that would be used when analyzing whether a worker is an employee or an independent contractor. This would result in workers losing FLSA protections. The FLSA includes provisions that require covered employers to pay employees at least the federal minimum wage for every hour they work and overtime compensation at not less than one-and-one-half times their regular rate of pay for every hour over 40 in a workweek. FLSA protections do not apply to independent contractors.

 

The withdrawal is effective May 6, 2021, its Federal Register publish date, resulting in there being no new rule that will currently take effect and the DOL will continue to use its previously established standards. The DOL also provides an FLSA Advisor that further discusses independent contractors.

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Individual state labor laws

State Specific Labor Law Updates:

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Employment Law Updates: April 2021

Employment Law Updates: April 2021

Three Federal, along with D.C., 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 for April 2021

1

Employer Tax Credits, American Rescue Plan, and Paid Leave for Employees to Get Vaccinated

On April 21, 2021, the Internal Revenue Service (IRS) released a fact sheet about the American Rescue Plan Act of 2021 (ARP), employers that are eligible for tax credits for the paid leave granted to employees for COVID-19 vaccinations, and how to claim them. The ARP allows small and midsize employers to claim refundable tax credits that reimburse them for the cost of providing paid sick and family leave to their employees due to COVID-19, including leave taken by employees to receive or recover from COVID-19 vaccinations.

The ARP tax credits are available to eligible employers that pay sick and family leave for leave from April 1, 2021, through September 30, 2021.

Tax Credits and Paid Sick and Family Leave

Eligible employers are entitled to tax credits for wages paid for leave taken by employees who are not able to work or telework due to reasons related to COVID-19, including leave taken to receive COVID–19 vaccinations or to recover from any injury, disability, illness or condition related to the vaccinations. These tax credits are available for wages paid for leave from April 1, 2021, through September 30, 2021.

Tax Credit Amount and Calculation

The paid leave credits under the ARP are tax credits against the employer’s share of the Medicare tax. The tax credits are refundable, which means that the employer is entitled to payment of the full amount of the credits if it exceeds the employer’s share of the Medicare tax.

The tax credit for paid sick leave wages is equal to the sick leave wages paid for COVID-19 related reasons for up to two weeks (80 hours), limited to $511 per day and $5,110 in the aggregate, at 100 percent of the employee’s regular rate of pay.  The tax credit for paid family leave wages is equal to the family leave wages paid for up to twelve weeks, limited to $200 per day and $12,000 in the aggregate, at 2/3rds of the employee’s regular rate of pay.

The amount of these tax credits is increased by allocable health plan expenses and contributions for certain collectively bargained benefits, as well as the employer’s share of social security and Medicare taxes paid on the wages (up to the respective daily and total caps).

Claiming the Credit

Eligible employers may claim tax credits for sick and family leave paid to employees, including leave taken to receive or recover from COVID-19 vaccinations, for leave from April 1, 2021, through September 30, 2021.

Eligible employers report their total paid sick and family leave wages (plus the eligible health plan expenses and collectively bargained contributions and the eligible employer’s share of social security and Medicare taxes on the paid leave wages) for each quarter on their federal employment tax return, usually Form 941, Employer’s Quarterly Federal Tax Return  Form 941 is used by most employers to report income tax and social security and Medicare taxes withheld from employee wages, as well as the employer’s own share of social security and Medicare taxes.

In anticipation of claiming the credits on the Form 941, eligible employers can keep the federal employment taxes that they otherwise would have deposited, including federal income tax withheld from employees, the employees’ share of social security and Medicare taxes and the eligible employer’s share of social security and Medicare taxes with respect to all employees up to the amount of credit for which they are eligible. The Form 941 instructions explain how to reflect the reduced liabilities for the quarter related to the deposit schedule.

If an eligible employer does not have enough federal employment taxes set aside for deposit to cover amounts provided as paid sick and family leave wages (plus the eligible health plan expenses and collectively bargained contributions and the eligible employer’s share of social security and Medicare taxes on the paid leave wages), the eligible employer may request an advance of the credits by filing Form 7200, Advance Payment of Employer Credits Due to COVID-19. The eligible employer will account for the amounts received as an advance when it files its Form 941, Employer’s Quarterly Federal Tax Return, for the relevant quarter.

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2

EBISA Releases Cybersecurity Guidance

On April 14, 2021, the U.S. Department of Labor (DOL) announced the following new guidance for plan sponsors, plan fiduciaries, recordkeepers and plan participants on best practices for maintaining cybersecurity:


This is the first time the DOL’s Employee Benefits Security Administration has issued cybersecurity guidance and it is designed for use by plan sponsors and fiduciaries regulated by the Employee Retirement Income Security Act, plan participants, and beneficiaries.

3

COBRA Premium Assistance FAQs and the American Rescue Plan Act of 2021

On April 7, 2021, the U.S. Department of Labor’s (DOL), Employee Benefits Security Administration (EBSA) released frequently asked questions (FAQs) addressing how certain provisions of the American Rescue Plan Act of 2021 (ARP) apply to the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA). The FAQs provide answers to general questions, inquiries about premiums, notices, and more.

More information is provided on the COBRA Premium Subsidy website and EBSA also released the following model notices:


COBRA continuation coverage provides certain group health plan continuation coverage rights for participants and beneficiaries covered by a group health plan. In general, under COBRA, an individual who was covered by a group health plan on the day before the occurrence of a qualifying event (such as getting fired or a reduction in hours that causes loss of coverage under the plan) may be able to elect COBRA continuation coverage when that qualifying event occurs. These individuals are referred to as qualified beneficiaries. Under COBRA, group health plans must provide covered employees and their families with certain notices explaining their COBRA rights.

Section 9501 of the ARP provides for COBRA premium assistance to help assistance eligible individuals continue their health benefits. The premium assistance is also available for continuation coverage under certain state laws. Assistance eligible individuals are not required to pay their COBRA continuation coverage premiums. The premium assistance applies to periods of health coverage on or after April 1, 2021 through September 30, 2021. An employer or plan to whom COBRA premiums are payable is entitled to a tax credit for the amount of the premium assistance.

The DOL also provides more information about the COBRA Premium Subsidy on its website.

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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

The Tip Regulations Under the Fair Labor Standards Act (FLSA) final rule (2020 Tip final rule) was published on December 30, 2020, with an effective date of March 1, 2021; however:
  • 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.

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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.

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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.

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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:
    1. Experiencing symptoms of COVID-19 and seeking a medical diagnosis;
    2. 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
    3. 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.”

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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.

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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

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