New Mexico: COVID-19 Cases Must be Reported to NM OSHA Within Four Hours

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All Employers with NM Employees

EFFECTIVE

August 5, 2020

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OSHA requires employers to provide notice of certain injuries and illnesses within eight to 24 hours, depending on the type and severity, and to record all work-related injuries and illnesses. Currently, COVID-19 cases must be reported if they are work-related.  However, some states have individual state-level OSHA plans with more stringent requirements. New Mexico falls into this category, and an emergency amendment to its injury and illness reporting regulations imparts a new temporary reporting requirement for COVID-19 cases.

Specifically, employers are required to report any cases in which an employee tests positive for COVID-19 within four hours of learning about the diagnosis, even if the illness is not work-related.  This emergency amendment remains in effect for 120 days, unless it is later made permanent.

Action Items

  1. Implement a procedure for timely reporting of COVID-19 cases.
  2. Have personnel trained to report cases promptly to management.
  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.

© 2020 ManagEase

September Updates

APPLIES TO

Varies

EFFECTIVE

Varies

QUESTIONS?

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(888) 378-2456

This Short List addresses the following topics:
  1. COVID-19: Executive Order Extending Unemployment Insurance
  2. DOL Releases Guidance on Application of FFCRA to Federal Contracts
  3. DOL’s Joint Employer Standard Struck Down
  4. EEOC Releases Guidance on Managing Opioid Addition in the Workplace
  5. 7th Circuit: FAA Applies to Food Delivery Drivers’ Arbitration Agreements
  6. Alabama: New Notice and Reporting Requirements for Separations and New Hires
  7. California: Appeals Court Limits PAGA Filings
  8. Connecticut: Masks Mandatory Everywhere
  9. Kansas: Adds LGBTQ Protections to Anti-Discrimination Rules
  10. Rhode Island: Clarifies When Employers May Terminate Employees for Refusing Drug Tests
  11. Philadelphia, PA: Wage Equity Ordinance Unblocked, Enforcement Begins
  12. Tennessee: New COVID-19 Isolation and Quarantine Guidelines
  13. Washington: Supplemental Paid Sick Leave for Food Production Workers
  14. Wisconsin: Mitigating Unemployment Insurance Charges for COVID-19

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IMPORTANT: Federal District Court Strikes Down Parts of the FFCRA’s Rules!

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All Employers Subject to the FFCRA

EFFECTIVE

August 3, 2020

QUESTIONS?

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(888) 378-2456

When the U.S. Department of Labor (DOL) issued its Final Rule implementing the Families First Coronavirus Response Act (FFCRA), the State of New York filed suit against the DOL claiming that parts of the Final Rule exceeded the DOL’s authority. As a result, the federal district court judge recently invalidated parts of the Final Rule.

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COVID-19: CDC Issues New Return to Work Guidelines Following Infection or Exposure

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All Employers

EFFECTIVE

June 13, 2020 and July 20, 2020

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(888) 378-2456

On July 20, 2020, the U.S. Centers for Disease Control (CDC) revised its guidelines for when employees may return to work following infection or exposure to COVID-19. For non-healthcare settings, changes were made to the symptom-based strategy:

  • Persons with COVID-19 who have symptoms and were directed to care for themselves at home may discontinue isolation under the following conditions:
  • At least 24 hours have passed since resolution of fever without the use of fever-reducing medications; and 
  • Improvement in other symptoms (e.g., cough, shortness of breath); and,
  • At least 10 days have passed since symptoms first appeared.

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ICE Extends Remote I-9 Compliance 30 More Days; No Extension on Notices of Inspections from March

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All Employers

EFFECTIVE

July 18, 2020

QUESTIONS?

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(888) 378-2456

In order to safely accommodate distancing and remote teleworking during the pandemic, the U.S. Immigration and Customs Enforcement (ICE) announced special flexibility for employers with regard to completing the physical inspection component of the Form I-9 Section 2.  This accommodation was originally set to expire on May 19, but was extended in May and June, and has been extended once more.  The new expiration date for the remote inspection of identifying documents accommodation is now August 19, 2020.

On the other hand, ICE also announced that there would be no further extensions granted to employers who received notices of inspection (NOI) from the agency during the month of March 2020.  Previously, employers who were served NOIs during March and had not yet responded were granted an automatic 60-day extension from the effective date.  However, no further extensions have been granted.

Action Items

  1. Review the USCIS’s Temporary Policies Related to COVID-19.
  2. Update Form I-9 procedures where appropriate.
  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.

© 2020 ManagEase

Executive Orders Ban New Foreign Workers; Align Federal Contracting Practices

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All Employers

EFFECTIVE

June 22, 2020 and August 3, 2020

QUESTIONS?

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(888) 378-2456

On June 22, 2020, the Trump Administration issued an Executive Order banning travel and admission of foreign nationals into the U.S. under certain nonimmigrant visa categories. Individuals who are already lawfully present in the United States prior to the implementation of the Order are not affected by this ban, nor individuals who hold a currently valid nonimmigrant visa.

Most U.S. embassies and consulates have already suspended routine visa services and restricted entry points into the U.S.  The effects of this travel ban will be most apparent once consulates reopen and resume issuing non-immigrant visas, as individuals abroad seeking H-1B, H-2B or H-4 visas (temporary workers), J visas (exchange visitors participating in education or certain child care industries), or L visas (intracompany transfers) will have visa applications refused.

The travel ban does not specify how extensions or changing of nonimmigrant status for individuals already present in the U.S. will be handled.  For example, an employer may still be able to file a petition to hire an H-1B worker presently working at another employer.

On August 3, 2020, another Executive Order was issued to align with the June 22nd Order, to support hiring U.S. citizens and green card holders. Specifically, the Order requires federal agencies to review 2018 and 2019 federal contracts to determine if they used temporary foreign labor or offshore labor for jobs that were once in the U.S., and whether doing so impacted opportunities for U.S. workers as well as any potential effects on national security. Federal agencies must issue a report of findings within 120 days to the Director of the Office of Management and Budget for review and who may recommend changes and presidential action if deemed necessary. There was also a call to action for the Departments of Labor and Homeland Security to protect United States workers from any adverse effects on wages and working conditions caused by the employment of H-1B visa holders within 45 days of the Order.

Action Items

  1. Consult immigration counsel if employing individuals or seeking to employ individuals with visas.
  2. Prepare for review of federal contracts and corresponding workforce, where applicable.
  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.

© 2020 ManagEase

U.S. DOL Issues Opinion Letters on Outside Sales, FLSA Exemptions, and Third-Party Wage Payments

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All Employers

EFFECTIVE

June 25, 2020

QUESTIONS?

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The U.S. Department of Labor (DOL) issued five new opinion letters in late June 2020, addressing potential exemptions under the Fair Labor Standards Act (FLSA).  A summary of key concepts from these letters is listed below.

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Supreme Court Broadens Ministerial Exception to Employment Discrimination Claims

APPLIES TO

Faith-Based Organizations

EFFECTIVE

July 8, 2020

QUESTIONS?

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(888) 378-2456

Employees classified under the “ministerial exception” because they perform religious functions within their job may be precluded from making employment discrimination claims against the religious entities that employ them. In Our Lady of Guadalupe School v. Morrisey-Berru and St. James School v. Biel, the U.S. Supreme Court expanded the exception analysis into a review of all the circumstances, rather than limiting it to a specific test.

In 2012, the U.S. Supreme Court used four factors to determine whether an employee’s role is ministerial: (1) formal job position title, (2) substance of the position based on the title, (3) the employee’s use of the title, and (4) the religious functions the employee performed for the religious institution. In Our Lady, the 9th Circuit stated that all four factors must be met to qualify for the exemption. Upon review, the Supreme Court said that these four factors were not meant to be a “rigid formula,” and that courts should “take all relevant circumstances into account.”

There, employee teachers taught academics and religion at Catholic schools to elementary-aged children and attended religious services with the children. The teachers were subsequently terminated based on alleged poor performance, and they brought discrimination suits against their employers. The Court considered the teachers’ actual duties and the fact that the schools “expressly saw [them] as playing a vital part in carrying out the mission of the church” in ultimately stating that they qualified for the exception. The fact that they did not have a “minister” job title was not determinative.

Action Items

  1. Have job descriptions updated to reflect the actual duties of employees.
  2. Review this ruling with legal counsel for further guidance.
  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.

© 2020 ManagEase

California: Commuting Time may be Compensable – Depending on Certain Factors

APPLIES TO

All Employers with CA Employees

EFFECTIVE

June 2, 2020

QUESTIONS?

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(888) 378-2456

In Oliver v. Konica Minolta Business Solutions USA, Inc., a California court stated that an employee’s commuting time to the first worksite of the day may be compensable time, depending on the level of control an employer exerts on the employee’s commute, and whether the employee may use commuting time for personal pursuits as well as business operations.

 

In Oliver, employees alleged that the employer needed to pay for the time and expense spent commuting to the worksite, because the employees were required to transport tools and equipment in their personal vehicles to the worksite, constituting a sufficient level of employer “control” over their commute time to equate it to working hours.  Upon closer review, it was determined that there is no singular “bright line” test to determine if a commute must be compensated.  Rather, an employer must examine any factors that limit or exert an employer’s control over an employee’s commuting time. For example:

  • In Oliver, the employer argued that employees had the option of leaving tools and supplies at specified field locations, and were not required to take them home and transport them back to the worksite each night. If transportation of the tools and equipment were truly optional, the commuting time is not considered compensable.
  • Additionally, commuting time is not compensable if the transportation of equipment does not prevent employees from utilizing commuting time for personal pursuits, such as running errands or picking up/dropping off children to school on the way.
  • However, variation in tools and equipment and size of personal vehicles made it impossible for some employees to utilize commute time for personal pursuits (e.g., equipment occupied all passenger space, meaning employee could not run errands or pick up children). In this case, the issue of “control” would need to be more closely assessed and is most likely compensable.

Action Items

  1. Review travel requirements to worksites to determine appropriate compensation under applicable wage and hour rules.
  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.

© 2020 ManagEase

Colorado: New Law Implements Mandatory Three-Pronged Paid Sick Leave Requirements

APPLIES TO

All Employers with CO Employees

EFFECTIVE

As Indicated

QUESTIONS?

Contact HR On-Call

(888) 378-2456

On July 15, 2020, the Health Families & Workplaces Act (HWFA) went into effect, instituting a three-part mandatory statewide paid sick leave requirement on all employers.  The three types of paid sick leave include COVID-19 emergency paid sick leave, paid sick and safe time, and public health emergency paid sick leave.  Some provisions have a delayed effective date.

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