OSHA Issues ETS for Certain Healthcare Providers

APPLIES TO

Certain Healthcare and Healthcare Support Employers

EFFECTIVE

June 21, 2021

QUESTIONS?

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(888) 378-2456

The Occupational Health and Safety Administration (OSHA) recently issued an emergency temporary standard (ETS) for employers whose employees provide healthcare services or healthcare support services (e.g., hospitals, nursing homes, assisted living facilities, emergency responders, home healthcare workers, and employees in ambulatory care facilities where suspected or confirmed COVID-19 patients are treated. Because the ETS is directed at unvaccinated workers most likely to be involved in caring for patients who have COVID-19, it specifically exempts certain healthcare workers:

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Second Circuit: OSHA Compliance Overrides ADA Accommodation Protections

APPLIES TO

All Employers subject to the ADA in CT, NY, VT

EFFECTIVE

June 9, 2021

QUESTIONS?

Contact HR On-Call

(888) 378-2456

In Bey v. City of New York, the Second Circuit Court of Appeal stated that because OSHA regulations require a clean-shaven face when wearing a self-contained breathing apparatus (i.e., respirator), the firefighter plaintiffs with severe skin conditions could not be accommodated by allowing a small amount of facial hair growth.

Under the Americans with Disabilities Act (ADA), employers must make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual” unless the employer “can demonstrate that the accommodation would impose an undue hardship on the operation of [its] business.” The court here stated that “[a]n accommodation is not reasonable within the meaning of the ADA if it is specifically prohibited by a binding safety regulation promulgated by a federal agency.” Because OSHA’s regulation prohibits the accommodation the firefighters were seeking, they were not protected by the ADA under the circumstances.

Action Items

  1. Review grooming and safety policies for compliance.
  2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2021 ManagEase

Eleventh Circuit: FAA Exemption for Transportation Workers Further Clarified

APPLIES TO

All Employers with Transportation Employees in AL, FL, GA

EFFECTIVE

June 22, 2021

QUESTIONS?

Contact HR On-Call

(888) 378-2456

In Hamrick v. Partsfleet, the Eleventh Circuit Court of Appeal reviewed whether final-mile delivery drivers—drivers who make local deliveries of goods and materials that have been shipped from out-of-state to a local warehouse—are in a “class of workers engaged in foreign and interstate commerce” and, thus, exempt under the Federal Arbitration Act (FAA) from having to arbitrate their Fair Labor Standards Act (FLSA) claims.

The court stated that for the FAA exemption to apply, the employee must be employed in the transportation industry and actually engage in the transportation of goods in interstate commerce. The focus is on what the worker actually does, not the goods themselves. Whether individuals are engaged in the interstate transportation of goods is a fact-finding determination. The court ultimately remanded the case to the lower court to make a factual determination on whether the workers met the exemption requirements.

Action Items

  1. Review arbitration agreements with legal counsel.
  2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2021 ManagEase

IMPORTANT! California: Meal and Rest Premiums Must Be Paid at Regular Rate

APPLIES TO

All Employers with CA Employees

EFFECTIVE

July 15, 2021

QUESTIONS?

Contact HR On-Call

(888) 378-2456

In Ferra v. Loews Hollywood Hotel, LLC, the California Supreme Court stated that premiums paid for missed meal or rest periods must be paid at the employee’s regular rate of pay. Employees’ regular rate includes hourly wages and nondiscretionary payments – the same rate used to calculate overtime pay. Additionally, the Court stated that its ruling is retroactive.

Employees must receive a minimum of an uninterrupted 30-minute meal period before the fifth hour of work, and at least an uninterrupted, 10-minute rest period for every four hours worked, or fraction thereof. Under Labor Code § 226.7(c), “the employer shall pay the employee one additional hour of pay at the employee’s regular rate of compensation for each workday that the meal or rest or recovery period is not provided.” (Emphasis added.) There, the employee received a base hourly wage and a quarterly nondiscretionary incentive payment; however, premium pay was only provided at the employee’s base hourly wage rate.

Ultimately, the Court stated that an employee’s “regular rate of compensation” has the same meaning as “regular rate of pay” used elsewhere in the Labor Code. “Regular rate of pay” includes hourly pay and any nondiscretionary incentive pay for work performed.

Action Items

  1. Immediately review meal and rest premium pay for compliance.
  2. Review with legal counsel for historical corrections.
  3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2021 ManagEase

Los Angeles, CA: Revised Supplemental Paid Sick Leave and New COVID-19 Vaccine Leave

APPLIES TO

Employers with Los Angeles, CA Employees, as indicated

EFFECTIVE

As Indicated

QUESTIONS?

Contact HR On-Call

(888) 378-2456

Los Angeles Mayor Eric Garcetti recently revised the extant Supplemental Paid Sick Leave (SPSL) order and issued a new vaccine leave order. The two orders have different effective date ranges and eligibility requirements, summarized below.

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Colorado: Vacation Must be Paid on Separation; Use-it-or-Lose-it Policies Unenforceable

APPLIES TO

All Employers with CO Employees

EFFECTIVE

June 14, 2021

QUESTIONS?

Contact HR On-Call

(888) 378-2456

In Nieto v. Clark’s Market, the Colorado Supreme Court indicated that company policies that require employees to forfeit accrued, unused vacation pay are unlawful.  Earned vacation time is considered a type of compensation under the Colorado Wage Claim Act (CWCA) and cannot be forfeited.

As such, accrued and unused vacation hours must be paid out upon separation of employment. While Nieto specifically addresses vacation payout upon separation, the same reasoning appears to apply to use-it-or-lose it policies during employment as well. Employers may institute a maximum accrual cap of at least one years’ worth of accrual, but are prohibited from implementing policies that deprive employees of already earned vacation time.

Neither the Nieto case or the Colorado DOL currently address whether the same regulations apply to combined PTO buckets of vacation, sick, and other types of personal time off. Finally, while Colorado employers are not required to provide vacation time at all, those that do must abide by the Nieto decision and the CWCA.

Action Items

  1. Review vacation accrual and payout policies for compliance.
  2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2021 ManagEase

Colorado: Legislative Updates for Discrimination and Veteran Hiring

APPLIES TO

All Employers with CO Employees

EFFECTIVE

As Indicated

QUESTIONS?

Contact HR On-Call

(888) 378-2456

Gender-Based Discrimination. Effective September 11, 2021, Colorado recently passed HB 21-1108 which clarifies prohibited sexual discrimination in employment. Specifically, employers cannot discriminate on the basis of gender expression (i.e., expression of gender to outside world, such as appearance, dress, and behavior) or gender identity (i.e., innate sense of one’s own gender). Additionally, sexual orientation was clarified as an individual’s actual or perceived sexual or emotional attraction towards others and the behavior or social affiliation that may result.

Veterans’ Hiring. Effective September 21, 2021, Colorado also passed HB 21-1065 which allows private employers to give hiring preference to armed forces veterans, military reserves members, National Guard veterans, and spouses of disabled veterans or service members killed in the line of duty. The veteran or spouse must still be as qualified as other applicants for employment, but employers will not be engaging in an unfair labor practice for choosing them based on their eligibility status. Employers utilizing the hiring preference must apply the policy uniformly to all hiring decisions, obtain a copy of the employee’s proof of service (i.e., discharge document DD214) or marriage to the service member, and create a written policy at least 14 days before it is applied to any new job posting or hiring decision. Additionally, private employers may advertise for and actively recruit veterans to apply for employment regardless of whether they have a veterans’ preference hiring policy.

Action Items

  1. Update anti-discrimination, EEO, and grooming policies.
  2. Implement required policy and update hiring procedures where applicable.
  3. Have appropriate personnel trained on the new requirements.
  4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2021 ManagEase

Connecticut: New Wage Transparency and Pay Equity Requirements, Coming Soon

APPLIES TO

All Employers with CT Employees

EFFECTIVE

October 1, 2021

QUESTIONS?

Contact HR On-Call

(888) 378-2456

Changes are coming soon for Connecticut employers in the realm of pay transparency and equity. House Bill No. 6380, effective October 1, 2021, will require employers to provide applicants and employees with wage range information under various circumstances. It also expands the standards used in gender wage discrimination claims and requires greater pay equity.

Wage Ranges. Employers are required to provide wage ranges—defined as the range of wages an employer anticipates relying on when setting wages for a position—under the following circumstances:

  • Applicants: when an applicant requests a wage range, or prior to or at the time the applicant is made an offer of compensation;
  • Employees: upon hire, when there is a change in the employee’s position with the employer, or the first time an employee makes a request for a wage range.

Pay Equity: Currently, employers are required to pay employees of different genders who perform equal work the same rate.  The bill amends the law to instead prohibit employers from paying workers of differing sexes less for comparable work. Exceptions that justify wage differentials have also been expanded to include level of credential, skill, and geographic location.

Action Items

  1. Review personnel and payroll systems to ensure wage range information can be made available timely when requested or required to be provided.
  2. Have a pay equity audit performed for compliance.
  3. Have appropriate personnel trained on new requirements.
  4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2021 ManagEase

Connecticut: Lactation Accommodation Requirements Expanded

APPLIES TO

All Employers with CT Employees

EFFECTIVE

October 1, 2021

QUESTIONS?

Contact HR On-Call

(888) 378-2456

Effective October 1, 2021, House Bill No. 5158 amends existing Connecticut statute to expand employer’s obligations to accommodate lactating employees.  Presently, all Connecticut employers must make reasonable efforts to provide a room or private location that is not a toilet stall for lactating employees to express breast milk. The bill expands upon this requirement by specifying that the room or other location must:

  • Be free from intrusion and shielded from the public;
  • Be situated near a refrigerator or employee-provided portable cold storage device in which breast milk can be stored; and
  • Have access to an electrical outlet.

Exceptions may apply where providing such accommodations imposes an “undue hardship” upon the employer’s business.

Action Items

  1. Review lactation accommodation policies and worksite spaces for compliance with the requirement.
  2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2021 ManagEase

Connecticut: Employees Now Have Unpaid Time Off to Vote

APPLIES TO

All Employers with CT Employees

EFFECTIVE

June 25, 2021

QUESTIONS?

Contact HR On-Call

(888) 378-2456

In addition to many other statewide updates, Connecticut employers will now need to provide employees with two hours of unpaid time off to vote. Employees are eligible for voting time during a state election, or for employees who are an elector in the case of any special election for a U.S. senator, representative in Congress, state senator or state representative.

Employees must request voting time off no less than two working days prior to the election. Up to two hours of unpaid time off may be taken from an employee’s regularly scheduled work on the day of a covered election during voting hours.

This unpaid time off provision remains effective until June 30, 2024.

Action Items

  1. Have voting policies updated.
  2. Have appropriate personnel trained on the new requirements.
  3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2021 ManagEase