As in 2020, labor law in 2021 was dominated by COVID-19 as employers questioned whether to voluntarily expand the fringe benefits provided by the Family First Coronavirus Response Act, issues related to remote work and back to work. The new year begins in uncertainty as the United States Supreme Court is set to decide the fate of several employer vaccine mandates in just days. The challenges of the pandemic are sure to keep employers busy in 2022. Here are our picks for highlights from the past year and a look at what’s to come in the new year.
OSHA HTA Status on COVID-19 Vaccination for Employers with 100 or More Employees
The first 10 days of January will be filled with action on the Supreme Court floor. The court will hear challenges to the Occupational Safety and Health Administration (OSHA) Temporary Emergency Standard (ETS) on January 7, 2022. If the court agrees that the ETS is legally admissible or does not rule on the challenge before January 10, 2022, employers with 100 or more employees must develop, adopt and enforce a mandatory COVID-19 vaccination policy or a policy that allows employees to choose between getting vaccinated and having weekly tests and wear face covers.
OSHA released the ETS in November 2021, but due to a number of legal challenges, the ETS has been maintained nationwide. The United States Court of Appeals for the Sixth Circuit dissolved the suspension on December 17, 2021, and OSHA promptly revised its turnaround times. OSHA has said it will not issue citations for non-compliance with ETS requirements until January 10, 2022, except that it will not issue citations for non-compliance with ETS testing requirements until. February 9, 2022, as long as an employer exercises reasonable and good faith efforts to comply with the standard.
In summary, the ETS requires employers to incentivize employees to get vaccinated by giving them up to four hours of paid time off to get each primary dose of the vaccine and by granting paid time off if an employee experiences side effects. vaccination. Alternatively, if an employee chooses not to be vaccinated, employers are not required to pay for weekly testing. However, depending on local and state laws, employers may be required to pay for the time it takes employees to get tested depending on the circumstances. Employees may be exempt from the immunization mandate, but not from the weekly testing requirement, if they apply for and are granted an exemption or accommodation based on a disability, medical condition, or sincere religious belief.
The ETS also requires a number of record keeping requirements, certain notices to be provided to employees, and a formal written policy outlining employer and employee obligations. OSHA has posted sample policies, answers to frequently asked questions, and other resources here.
Federal Contractor COVID-19 Vaccination Rule Status
Similar to the OSHA ETS described above, there have been a number of court challenges against President Biden (EO) Executive Order 14042 requiring federal contractors to enact and enforce mandatory COVID-19 vaccination for their employees. On December 7, 2021, the U.S. District Court for the Southern District of Georgia issued a national injunction blocking the implementation of the warrant. The Eleventh Circuit Court of Appeals rejected the administration’s request to immediately lift the injunction, but established an expedited briefing schedule for the appeal. If everything goes according to the court’s schedule, a decision will be made no earlier than mid-January, which will likely go to the Supreme Court for review, regardless of the outcome.
The Federal Contractor Rule differs from the 100 Employers ETS in that it does not allow a weekly testing option for employees unless they cannot be vaccinated due to religious belief or disability. sincere. OSHA has been silent on whether employers who would otherwise be covered by the federal contractor rule, but who also have 100 employees, must comply with the 100-employee ETS while the national injunction is in place. As a precaution, however, employers who have 100 or more employees who would also be covered by the Federal Contractor Rule should be prepared to implement OSHA ETS requirements within the applicable timelines, unless the Supreme Court n ‘decides otherwise.
Status of CMS Rule on COVID-19 Vaccination
The Centers for Medicare and Medicaid Services (CMS) announced a rule requiring workers at healthcare facilities participating in Medicare or Medicaid to be fully immunized along with a host of other reporting and data tracking requirements. This rule applies to employees, whether clinical or not, as well as to students, interns and volunteers in covered establishments. It also covers employees who work at these facilities under contract or other arrangement.
The CMS rule is currently in effect in 25 states, including Missouri, and the Supreme Court is expected to hear legal challenges on January 7, 2022. However, with respect to other states and territories, including Illinois, CMS will go from forward with the application of its vaccine mandate. By January 27, 2022, staff in all settlement health facilities must receive the first dose of a COVID-19 vaccine (or Johnson & Johnson single-dose vaccine) before providing care, a treatment or other patient services. in facility covered and the second dose of vaccine by February 28, 2022. Guidance regarding requirements can be found here, and more coverage is on our Health Care Today blog.
However, CMS said that employers who are not subject to the requirements of the CMS rule should be prepared to comply with the OSHA ETS or the federal contract rule. Agencies said the ultimate goal is to have as many employers and employees as possible covered by different immunization mandates.
Minimum wage increases for federal contractors
On January 1, 2022, Decree 13658 comes into force. The ordinance increases the minimum wage to $ 11.25 / hour for workers performing work on or in connection with existing covered contracts. Additionally, covered contract tip workers must be paid a minimum cash wage of $ 7.90 / hour. However, Decree 14026 will increase the minimum wage to $ 15 / hour for employees under covered contracts that are entered into, renewed or extended as of January 30, 2022. The rate will be determined annually as of January 1, 2023, by the Secretary work.
The minimum wage increase applies to all federal construction contracts covered by the Davis-Bacon Act; service contracts covered by the law on service contracts; concession contracts, such as contracts for the provision of food, accommodation, motor fuel, souvenirs, newsstands and / or recreational equipment on federal property; and contracts to provide services, such as babysitting or dry cleaning, in federal buildings for federal employees or the general public. The Labor Department said the rule will be widely applied to workers to protect workers performing “on” covered contracts (i.e. workers directly performing specific services or construction required by the terms of the contract) as well as workers performing “in connection with covered contracts (ie workers performing other tasks necessary for the performance of the contract). This will include workers who provide support on covered contracts that is necessary for the performance of the contract, such as a security guard overseeing a covered project.
DOL Final Rule Regarding Partial Withdrawal of Tips Regulations
The Department of Labor has partially withdrawn its previous regulations regarding tipped employees under the Fair Labor Standards Act (FLSA). Under the FLSA, employers can meet minimum wage requirements for tip employees by paying them at least $ 2.13 per hour if employees earn enough tips to make up the difference between that wage and the wage. total minimum. The difference is called a tip credit. The final rule can be found here.
The final rule specifies that an employer can only earn “tip credit” when an employee performs work that directly generates tips or work that directly supports work that earns tips (also known as side work. in the service sector) and ‘is not played for a substantial period of time. The DOL defines this standard as exceeding 20 percent of an employee’s workweek or performed for a continuous duration greater than 30 minutes, which is commonly referred to as the 80/20 rule. However, the DOL explained that an employer must pay workers the full minimum wage for any work that does not directly or substantially support tip-producing activities and for ancillary work that exceeds the 80/20 rule.
The DOL also clarified several changes to section 3 (m) of the FLSA regarding the pooling of tips. The final rule establishes the DOL’s right to impose civil monetary penalties of up to $ 1,100 per violation against employers who illegally withhold tips from employees. Employers are prohibited from keeping tips that tip employees receive, whether or not they intend to claim a tip credit. While employees should keep any tips they receive, employers can still establish a tip pool for tip sharing among employees who usually receive tips. However, the final rule states that supervisors and managers cannot take tips from a tip pool.
In addition, the DOL now allows employers to require that regular tip employees (such as waiters) and usually non-tip employees (such as dishwashers and cooks) pool their tips and share the tips. profits. But if this non-traditional tip pooling is used, employers cannot get tip credit. The new rule also requires employers to redistribute tips collected as part of any mandatory tip reserve no later than when employers pay wages to employees.
Finally, the Rule creates new record keeping obligations for employers who maintain a mandatory tip pool but do not accept credit for tips, which include identifying tip employees on payroll records and keeping the weekly or monthly tip amounts received by each employee up to date. With this final rule, employers who currently take tip credit should consider whether the non-traditional tip pool option may have a moral benefit for employees that outweighs the benefit of claiming the tip credit.