Employment Law Updates: January 2022

Employment Law Updates: January 2022

Five Federal and eighteen 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

2021 EEO-1 Component 1 Data Collection Tentatively Opens on April 12, 2022

The 2021 EEO-1 Component 1 data collection is tentatively scheduled to open on Tuesday, April 12th, 2022. The tentative deadline to file the 2021 EEO-1 Component 1 Report
is Tuesday, May 17th, 2022. Updates regarding the 2021 EEO-1 Component 1 data collection will be posted on this website as they become available.

Additionally, the Equal Employment Opportunity Commission (EEOC) is discontinuing the EEO-1 Component 1 Type 6 Establishment List Report for reporting establishments with fewer than 50 employees. Beginning with the 2021 EEO-1 Component 1 data collection, all filers reporting data for establishments with fewer than 50 employees must use a Type 8 Establishment Report to submit their data.

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2

COVID and ADA

The Justice Department updated its Common Questions About COVID and the ADA to address the following COVID-era issues affecting people with disabilities:

Medical facilities’ visitor policies must account for the rights of people with disabilities to receive equal access to care; and outdoor retail or dining spaces (sometimes called “streateries”) must be accessible to people with disabilities and not prevent their use of sidewalks and accessible parking.

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3

COVID-19 FAQs and Mandatory Coverage for Free OTC At-Home Tests by January 15, 2022

On January 10, 2022, the U.S. Department of Labor’s Employee Benefits Security Administration (EBSA) posted its FAQs regarding implementation of the Families First Coronavirus Response Act (FFCRA), the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), and the Affordable Care Act. These FAQs were prepared jointly by the Departments of Labor, Health and Human Services, and the Treasury and—like previously issued FAQs here and here—answer questions about the laws and legal compliance.

Importantly, the new FAQs discuss the Biden-Harris administration’s requirement that insurance companies and group health plans cover the cost of over-the-counter (OTC), at- home COVID-19 tests, so people with private health coverage can get them for free starting January 15th. According to the Centers for Medicare and Medicaid Services, this new coverage requirement means that most consumers with private health coverage can go online or to a pharmacy or store, buy a test, and either get it paid for up front by their health plan, or get reimbursed for the cost by submitting a claim to their plan. This requirement incentivizes insurers to cover these costs up front and ensures individuals do not need an order from their health care provider to access these tests for free.

Beginning January 15, 2022, individuals with private health insurance coverage or covered by a group health plan who purchase an over-the-counter COVID-19 diagnostic test authorized, cleared, or approved by the U.S. Food and Drug Administration (FDA) will be able to have those test costs covered by their plan or insurance. Insurance companies and health plans are required to cover eight free over-the-counter at-home tests per covered individual per month. That means a family of four, all on the same plan, would be able to get up to 32 of these tests covered by their health plan per month. There is no limit on the number of tests, including at-home tests, that are covered if ordered or administered by a health care provider following an individualized clinical assessment, including for those who may need them due to underlying medical conditions.

Over-the-counter test purchases will be covered in the commercial market without the need for a health care provider’s order or individualized clinical assessment, and without any cost-sharing requirements such as deductibles, co-payments or coinsurance, prior authorization, or other medical management requirements.

As part of the requirement, the Administration is incentivizing insurers and group health plans to set up programs that allow people to get the over-the-counter tests directly through preferred pharmacies, retailers or other entities with no out-of-pocket
costs. Insurers and plans would cover the costs upfront, eliminating the need for consumers to submit a claim for reimbursement. When plans and insurers make tests available for upfront coverage through preferred pharmacies or retailers, they are still required to reimburse tests purchased by consumers outside of that network, at a rate of up to $12 per individual test (or the cost of the test, if less than $12). For example, if an individual has a plan that offers direct coverage through their preferred pharmacy but that individual instead purchases tests through an online retailer, the plan is still required to reimburse them up to $12 per individual test. Consumers can find out more information from their plan about how their plan or insurer will cover over-the-counter tests.

State Medicaid and Children’s Health Insurance Program (CHIP) programs are currently required to cover FDA-authorized at-home COVID-19 tests without cost-sharing. In 2021, the Biden-Harris Administration issued guidance explaining that State Medicaid and Children’s Health Insurance Program (CHIP) programs must cover all types of FDA- authorized COVID-19 tests without cost sharing under CMS’s interpretation of the American Rescue Plan Act of 2019 (ARP). Medicare pays for COVID-19 diagnostic tests performed by a laboratory, such as PCR and antigen tests, with no beneficiary cost sharing when the test is ordered by a physician, non-physician practitioner, pharmacist, or other authorized health care professional.

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4

Supreme Court Halts OSHA ETS

The United States Supreme Court has halted the OSHA vaccine-or-test Emergency Temporary Standard (ETS). As a result, covered employers (those with 100 or more employees) are not currently required to comply with the ETS.

Employers should continue to comply with all other federal, state, and local requirements— this ruling only affects the OSHA ETS. If you’re in a state with an OSHA State Plan,
you should continue to keep an eye out for state OSHA requirements.

The Supreme Court ruling was limited to whether the stay should be put back in place. The case now returns to the Sixth Circuit Court of Appeals to determine whether the ETS is beyond OSHA’s authority. Based on the reasoning of the Supreme Court, which indicated that OSHA had overstepped its bounds by regulating public health generally rather

than just occupational health, it seems unlikely that the ETS will be revived. This post has been changed since its original publication.

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5

Processing Vaccination Accommodation Requests under the ADA

On January 14, 2022, the Job Accommodation Network published Processing Vaccination Accommodation Requests under the Americans with Disabilities Act outlining a sample process for employers to determine whether they must grant a vaccination exception or delay as a reasonable accommodation under the ADA when employees are subject to a federal or state-imposed vaccination mandate or an employer policy. When an employee requests an accommodation and the disability and need for the accommodation are not obvious or already documented, the employer can require reasonable medical documentation. There is no required ADA medical documentation request form, but the Safer Federal Workforce provides a template for federal employers that can be modified by other employers as needed.

Is the employee unable to be vaccinated for COVID-19 because of a disability?

No: Deny the request under the ADA, apply other laws if appropriate, or follow usual policies.
Yes: Can the employee safely work while unvaccinated in the current job and work environment?

Yes: Allow the vaccination exception or delay.
No: Can accommodations be provided to eliminate or reduce exposure risk to an acceptable level, absent undue hardship?

Yes: Grant the vaccination exception or delay and provide the accommodations.
No: Deny the request under the ADA, apply other laws if appropriate, or follow usual policies.

More information is located at FAQ: COVID-19 Vaccination and the Americans with Disabilities Act.

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: 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.

State Map

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: November 2020

Federal Law Updates: November 2020

Three Federal along with D.C and fourteen 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.

November 2020 State Law Alerts

Labor Law Updates for November 2020

1

Federal Contractor Minimum Wage Rate for 2021

Increase in minimum wage rates effective January 1, 2021.

Effective January 1, 2021, the applicable minimum wage rate for workers performing work on or in connection with federal contracts covered by Executive Order 13658 increases to $10.95 per hour. Additionally, the required minimum cash wage for tipped employees performing work on or in connection with covered contracts increases to $7.65 per hour.

2

Form I-9 Flexibility Extended to December 31, 2020

Annother extension to the flexibility rules for Form I-9 compliance.

On November 18, 2020, the U.S. Immigration and Customs Enforcement (ICE) announced another extension to the Employment Eligibility Verification (Form I-9) flexibility rule, which was extended to December 31, 2020, because of COVID-19 and the need for precautions. This flexibility rule, applicable only to remote workplaces, defers the physical presence requirement for in-person verification of the Form I-9 identity and employment eligibility documentation. However, the flexibility rule does not apply if there are employees physically present at the workplace. If there are employees physically present, then an employer must verify their Form I-9 identity and employment eligibility documentation in-person.

On March 19, 2020, the DHS first announced that the physical presence requirements were deferred due to COVID-19. The DHS and ICE websites provide additional updates about when the extensions will end and when normal operations will resume.

3

DOL and New FLSA Opinion Letters

DOL announces new opinion letters addressing compliance related to FLSA.

On November 3, 2020, the U.S. Department of Labor (DOL) announced the following new opinion letters that address compliance issues related to the Fair Labor Standards Act (FLSA): 

  • FLSA2020-15: Addressing the compensability of time that employees spend attending voluntary training programs in certain situations.
  • FLSA2020-16: Addressing compensability of employee travel time in certain situations involving construction sites located away from the employer’s principal place of business.

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.

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

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