June Updates

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OSHA Changes Position on Recording COVID-19 Vaccine Reactions on Logs

On May 21, 2021, the federal Occupational Safety and Health Administration (OSHA) published a new FAQ, pivoting on previous guidance regarding recording adverse reactions from COVID-19 vaccines on OSHA 300 logs.  Specifically, OSHA indicated that employers do not need to record adverse reactions caused by obtaining a COVID-19 vaccine on the OSHA 300 logs through May of 2022. OSHA also removed previous FAQs regarding adverse vaccine reactions from their website.

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NLRB: Boeing Test Gets a Slight Update

On May 3, 2021, in AT&T Mobility, LLC, the National Labor Relations Board (NLRB) relaxed part 1(b) of the Boeing test that determines whether policies that are facially neutral violate the National Labor Relations Act (NLRA) in their application. Specifically, an employer may still maintain a facially neutral policy, even though it’s used to violate Section 7 of the NLRA; the policy is not required to be rescinded. There, the employer had a valid no recording policy that it improperly used to threaten an employee for recording another employee’s termination meeting that he attended in his capacity as union steward. The remedy in that situation would be for the NLRB to order the employer to cease and desist using the valid policy in a way that violates the NLRA, and post an appropriate notice.

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Federal Circuit: USERRA Discrimination

On May 14, 2021, in Beck v. Department of Navy, the Federal Circuit Court stated that under the Uniformed Services Employee and Reemployment Rights Act (USERRA), preselecting an individual for a job position can support an agency’s hiring of a less qualified candidate, but only if that preselection does not involve unlawful discrimination. There, a more qualified applicant was not hired over a less qualified applicant allegedly based on the more qualified applicant’s former rank while serving in the Navy. The court stated that the employer failed to show that the decision not to hire the more qualified applicant would have occurred regardless of his military service.

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4^th Circuit: Appellate Review of Arbitration Decisions Not Necessary

On April 8, 2021, in Beckley Oncology Associates v. Abumasmah, the Fourth Circuit stated that arbitration agreements with waivers to appeal the arbitrator’s decision are enforceable, provided that the agreement permits an initial review of the decision by the district court. Employers should have their arbitration agreements reviewed by legal counsel for any updates.

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9^th Circuit: Arbitration Agreement Does Not Limit DOL

On May 18, 2021, in Walsh v. Arizona Logistics, Inc., the Ninth Circuit Court of Appeal stated that arbitration agreements between employers and employees do not prevent the U.S. Department of Labor (DOL) from independently bringing charges against an employer to enforce the Fair Labor Standards Act (FLSA) and seek relief specific to employees.

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Arizona: Limited Liability for Hiring with Certificate of Second Chance

On August 27, 2021, HB 2067 expands eligibility for obtaining a Certificate of Second Chance allowing certain convictions to be set aside. Employers who hire individuals with a Certificate are generally not liable for injuries or damages caused by the worker, except for certain occupations and excluding certain convictions.

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REMINDER! California: CalSavers Deadline June 30^th

All employers with 50 or more employees must register with CalSavers by June 30, 2021, regardless of whether they offer retirement programs (e.g., 401(k) plan). Employers who do offer retirement programs may register as exempt. Employers with 100 or more employees should have already been registered by September 30, 2020. Employers should visit www.calsavers.com for more information.

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New York: Employers Can Adopt CDC Guidance for Fully Vaccinated Employees

As of May 19, 2021, New York announced that the CDC’s “Interim Public Health Recommendations for Fully Vaccinated People,” would now apply to most commercial settings in New York (excluding pre-K to grade 12 schools, public transit, homeless shelters, healthcare settings, correctional facilities, and nursing homes). Employers can choose one of two paths: (1) continue operating under previous New York state COVID-19 health guidance, which requires individuals to wear masks and maintain social distancing; or (2) permit fully vaccinated individuals to not wear masks or social distance. Employers can request proof of completed vaccination status from individuals via paper documentation, digital app, or the NY Excelsior Pass. There are additional requirements for covered businesses that congregate large amounts of patrons. Employers can read more about the adopted guidelines here.

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Rhode Island: New Annual Minimum Wage Increases up to $15 by 2025

On May 20, 2021, Governor McKee signed an amendment that will gradually increase Rhode Island’s statewide minimum wage each year until it reaches $15.00 per hour in 2025. The first increase is effective January 1, 2022, with a new minimum wage of $12.25 per hour. The wage increases to $13.00 an hour as of January 1, 2023, then increases another $1 per hour each year until it reaches the $15.00 rate in 2025.

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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.

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