Do New Executive Orders Create a Vaccine Mandate for Employers?

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All Employers with 100+ Employees

EFFECTIVE

September 9, 2021

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On September 9, 2021, the White House issued two executive orders and announced additional forthcoming rules regarding COVID-19 safety requirements as part of its Path Out of the Pandemic Action Plan (Action Plan). Employers now have questions about what this news means for them. So, let’s break down each piece.

 

All Employers with 100+ Employees

President Biden announced that he instructed the Occupational Safety and Health Administration (OSHA) to draft a new emergency rule requiring private employers with 100+ 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. Additionally, employers must provide their workers with paid time off to get vaccinated against COVID-19 and recover from any vaccination-related side effects. OSHA is expected to issue the emergency rule in coming weeks, which will reportedly include a required $14,000 fine per violation for failure to comply.

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What Employers Need to Know About the CDC’s Latest Mask Update

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All Employers in Nonhealthcare Settings

EFFECTIVE

July 27, 2021

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The CDC recently updated its mask guidance for vaccinated individuals (in nonhealthcare settings) to “wear a mask indoors in public if you are in an area of substantial or high transmission.” The CDC also provides a map of the country indicating which counties currently have substantial or high COVID-19 transmission, versus moderate or low transmission. As a result, multiple states are updating their own state mask requirements and guidelines to mirror those of the CDC.

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7th Circuit: Ministerial Exemption Applies to Hostile Work Environment Claims

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All Employers in IL, IN, WI with Ministerial Employees

EFFECTIVE

July 9, 2021

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In 2020, in Demkovich v. St. Andrew the Apostle Parish, Calumet City, the Seventh Circuit Court of Appeal stated that the ministerial exception does not bar hostile work environment claims under federal employment discrimination laws. Religious organizations may claim exemption from anti-discrimination laws in employment relationships with employees who have ministerial duties that meet the ministerial exception. More recently, the Seventh Circuit reviewed the case en banc and reversed the original opinion.

Specifically, the Seventh Circuit en banc now stated that the ministerial exception prohibits hostile work environment claims that arise under employment discrimination laws, in part, because the risk of entanglement in religious matters is excessive. Originally, the court limited the ministerial exception to hiring and firing decisions but eliminated its extension to ongoing employment decisions. In contrast, the court sitting en banc stated that ongoing employee supervision is as equally important to organizational autonomy as managing hiring and firing decisions. This view differed significantly from the original opinion which found only a modest risk of entanglement and potential interference in religious internal governance. With this shift, employers in the Seventh Circuit should again review their policies and practices to ensure compliance with anti-discrimination laws.

Action Items

  1. Have policies and practices to ensure compliance with anti-discrimination laws.
  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

California: Permissible Overtime Calculations for Dual-Rate Employees

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All Employers with CA Employees

EFFECTIVE

June 25, 2021

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In Levanoff v. Dragas, the California Court of Appeal stated that employers with employees who earn wages at more than one rate may use the rate-in-effect method of calculating overtime. Specifically, employees who work at different rates of pay within a single pay period (dual rate employees) may be paid for overtime hours based on the rate in effect when the overtime hours began (rate-in-effect method).

There, dual rate employees claimed that they should have been paid using the weighted average method of calculating overtime. However, the court stated that California law does not mandate the use of the weighted average method. Moreover, the pay policy must be scrutinized for whether it is neutral on its face and in its application. A policy is neutral on its face if it applies to all employees without regard to whether the employer or employee benefits from the policy’s operation. A policy is neutral in application if it does not systematically undercompensate employees, and “a system is fair and neutral and does not systematically undercompensate employees where it results in a net surplus of compensated hours and a net economic benefit to employees viewed as a whole.”

The court also looked at the policy’s net effect on overall employee compensation. There, the dual rate employees received net greater overtime pay under the rate-in-effect method than they would have received under the weighted average method. Because the calculation method used was lawful, the court did not address what overtime pay method must always be used. Employers should continue to review pay policies for neutrality and overall employee benefit.

Action Items

  1. Review overtime pay 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

Connecticut: Institutes Statewide Right to Recall Act

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All Employers with 15 or more CT Employees in Specified Industries

EFFECTIVE

July 13, 2021

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Substitute Senate Bill No. 658, signed into law on July 13, 2021 and effective immediately, obliges employers in specified hospitality and business service industries to follow new recall and retention requirements. These new provisions follow in the same vein as a number of other states and municipalities in response to workers impacted by the pandemic.

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Iowa: State Supreme Court Clarifies Employee Drug Testing Rules

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All Employers with IA Employees

EFFECTIVE

June 25, 2021

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(888) 378-2456

The Iowa Supreme Court recently weighed in on two cases involving Iowa’s drug testing law, clarifying employer obligations and testing processes.

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Louisiana: Employers Must Begin Providing Pregnancy-Related Accommodations

APPLIES TO

All Employers with 25+ LA Employees

EFFECTIVE

August 1, 2021

QUESTIONS?

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(888) 378-2456

Louisiana employers will need to begin providing reasonable accommodations to employees who are impacted by pregnancy, childbirth, or related medical conditions. Previously, employers were only required to provide accommodations if they already provided accommodations to others who are similar in their ability or inability to work.

Act No. 393 of the 2021 Regular Session requires employers to provide specific accommodations, such as:

  • Providing more frequent bathroom breaks;
  • Providing more frequent, scheduled, or longer paid rest periods;
  • Providing a private place other than a bathroom stall for lactation purposes;
  • Modifying food or drink policies;
  • Providing seating or allowing the employee to sit more frequently if the job typically requires the employee to stand;
  • Providing assistance with manual labor and respecting weight-lifting limitations;
  • Job restructuring or transfer to light duty or less strenuous vacant position, if qualified;
  • Providing or modifying equipment necessary to provide essential job duties;
  • Modifying work schedules.

Employers are prohibited from taking adverse action or discriminating against pregnant employees, such as terminating from employment, reducing compensation or other privileges of employment, or refusing to select workers for training programs that could lead to a promotion.

The statute also carries a new notice requirement. Employers will be required to post a notice regarding the new workplace rights by December 1, 2021, and to provide such information to employees at time of hire. The Louisiana Department of Labor is expected to create a poster for employer use.

Action Items

  1. Train managers on handling requests for lactation accommodation.
  2. Have pregnancy disability and lactation accommodation policies updated.
  3. Prepare to display required posting when available and add to new hire document distribution packet.
  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

Louisiana: New Fair Chance Rules Apply to Job Applicants’ Criminal History

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All Employers with LA Employees

EFFECTIVE

August 1, 2021

QUESTIONS?

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(888) 378-2456

HB 707 implements new fair chance rules for job applicants with a criminal history. First, employers cannot inquire into an applicant’s arrest history that did not result in a conviction. Second, when considering criminal records, employers must conduct an individual assessment of whether an applicant’s criminal history record has a “direct and adverse relationship” with the specific duties of the job that may justify denying the applicant the position. The individual assessment must include consideration of (1) the nature and gravity of the offense or conduct; (2) the time that has elapsed since the offense, conduct, or conviction; and (3) the nature of the job sought. Finally, employers must provide applicants with a copy of the background check report upon written request.

Because this is not a ban-the-box rule, employers can still make preemployment criminal history inquiries; however, they must now follow new rules once a background screen has been conducted. Employers must still comply with the federal Fair Credit Reporting Act requirements for conducting background checks.

Action Items

  1. Review HB 707 here.
  2. Have background check procedures updated for compliance.
  3. Train appropriate personnel on conducting individual assessments.
  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

Maine: Legislative Employment Updates

APPLIES TO

All Employers with ME Employees

EFFECTIVE

As Indicated

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(888) 378-2456

Maine’s summer legislative session resulted in several new bills implementing or expanding upon previous employment regulations, including ban-the-box, tip credits, paid family leave eligibility, and more.

LD 1167: Ban-the-Box. Effective October 18, 2021, employers are prohibited from requesting criminal history information on initial employment application forms, or from stating on applications or job postings that an individual with criminal history will not be considered for a position. Exceptions apply for positions in which federal or state law regulates what type of criminal conviction history is permissible for the role.

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Minnesota: Amendments to Pregnancy Accommodations

APPLIES TO

All Employers with 15+ MN Employees

EFFECTIVE

January 1, 2022

QUESTIONS?

Contact HR On-Call

(888) 378-2456

Minnesota employers are required to provide workers with certain pregnancy-related accommodations, including lactation breaks. As part of the Omnibus Jobs and Economic Growth Finance and Policy Bill, a new amendment expands on the existing protections in place.

More specifically, employers will be prohibited from reducing a lactating employee’s compensation for time spent expressing milk. Employers may request lactation breaks be scheduled concurrently with an employee’s normally schedule meal or rest periods but cannot dock the employee’s pay if the lactation break is taken outside those time frames. However, the employer’s obligation to accommodate lactation breaks is limited to the 12 months following the birth of an employee’s child.

Per the amendment, Minnesota’s regulations on nursing mothers, lactating employees, and pregnancy accommodations apply to all employers with at least 15 employees. The amendment removes any minimum service hours an employee must work per week in order to qualify for accommodations or protections under the statute.

Action Items

  1. Train managers and payroll staff on handling requests for lactation accommodation.
  2. Have lactation accommodation policies updated.
  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