May 2021: The Top 18 Labor And Employment Law Stories
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
May 2021: The Top 18 Labor And Employment Law Stories
Insights
6.01.21
It’s hard to keep up with all the recent changes to labor and employment law. While the law always
seems to evolve at a rapid pace, there have been an unprecedented number of changes for the past
few years—and this past month was no exception.
In fact, there were so many significant developments taking place during the past month that we
were once again forced to expand our monthly summary well beyond the typical “Top 10” list. In
order to make sure that you stay on top of the latest changes, here is a quick review of the Top 18
stories from last month that all employers need to know about:
1. Employers May Be Able To Scrap Mask Mandates For Fully Vaccinated Workers: A 7-Step
Blueprint to Overcome Risks and Hurdles – The May 13 announcement from the CDC that fully
vaccinated people no longer need to wear a mask or physically distance in any non-healthcare
setting was a welcome relief for all Americans and a hopeful sign that we have turned a significant
corner with the COVID-19 pandemic. But the announcement included an important caveat – that the
guidance did not overrule federal law, workplace guidance, local business restrictions, or state,
local, or other similar regulations. And because the CDC’s announcement offered no specific
guidance for employers, many workplaces may feel unsure how to proceed. The good news is that
the new rules seem to offer a path forward for those employers that want to proceed to a mask-less
workplace – but such a path involves some risks to consider and hurdles to overcome. There’s a
seven-step blueprint for employers to get to that point.
2. Employers Now Have 2 Clear Options to Provide Vaccine Incentives Thanks to New EEOC
Guidance – The EEOC kicked off the unofficial start of summer with a bang by clearing the way for
employers to offer their employees incentives to get the COVID-19 vaccine in new guidance released
on the eve of the Memorial Day weekend. The May 28 updates to the agency’s COVID-19 Technical
Assistance guidance now provides employers with two clear options, drawing a key distinction
based on who administers the shot:
1. If your employees voluntarily provide documentation confirming they have been vaccinated and
got the shot on their own from a pharmacy, public health department, or other health care
provider in the community, you can offer them any incentive you’d like with no apparent
limitations.
2. If your organization (or an entity acting on your organization’s behalf) administers the vaccine,
you can still offer incentives – but they cannot be so substantial in value as to be considered
Copyright © 2021 Fisher Phillips LLP. All Rights Reserved.
coercive.
Regardless of which path you travel, there are still hoops to jump through if you want to provide
vaccine incentives – providing accommodations, ensuring confidentiality, etc. – but you now have a
clear direction to take to encourage your workers towards vaccination. What do you need to know
about this critical update?
3. Employers Have 3 Options in Light of OSHA’s Unmasking Announcement – Responding to a
huge looming question for employers, the Occupational Safety and Health Administration
(OSHA) issued a May 17 announcement referring businesses to the CDC’s new guidance advising
that fully vaccinated people no longer need to wear a mask or social distance in non-healthcare
settings. But neither OSHA’s May 17 announcement nor the CDC’s May 13 release provide specific
direction to employers about whether and how they should proceed when it comes to developing
unmasking policies and procedures. In light of the current state of the law, employers have three
basic choices when it comes to masking policies for their workers: maintain full masking rules,
require vaccinated workers to present proof of inoculation before being allowed to go mask-less, or
ask employees to follow an honor system approach. What do you need to know about these three
options?
4. FP Flash Survey Reveals That Most Employers Continue to Refrain From Mandating COVID-19
Vaccine But Vast Majority Encouraging It – It appears an overwhelming number of employers are
not mandating their employees receive the COVID-19 vaccine – more than four in five – but are
instead encouraging their workforce to get inoculated from the virus. That’s according to a survey
conducted by Fisher Phillips, with over 600 respondents providing their thoughts between May 14-
19. The most recent survey – which follows a similar survey the firm conducted in January 2021–
sheds light on the rationale behind these business decisions and reveals some shifting attitudes on
this topic over the last few months.
5. White House Wipes Out Trump-Era Gig Economy Rule – After a minor delay in the rulemaking
process, the expected just occurred: effective May 6, President Biden’s Department of
Labor rescinded the gig economy regulation that would have made it easier to classify workers as
independent contractors. We’ve seen this coming for some time now – in early January, in fact, we
wrote a Legal Insight about how the future of the Trump-era Department of Labor’s gig economy
rule was “uncertain.” What can you expect from this rollback and what does it mean for businesses
and workers?
6. States are Opting Out of Federal Unemployment Benefits To Induce Employees Back to Work
– Your 10-Step Plan to Fill out Your Workforce – The increase in vaccinations and decrease in the
COVID-19 infection rate has led to a rapid reopening of the U.S. economy. But as the country starts to
fully reopen and businesses ramp back up, the need to recall or rehire employees — some of whom
have been collecting enhanced unemployment benefits — has created a new crisis point: labor
shortages. A growing number of states are seeking to combat this crisis by moving to end federally
funded pandemic unemployment benefits, including the extension of the number of weeks of
Copyright © 2021 Fisher Phillips LLP. All Rights Reserved.
available benefits and the extra $300 per week in enhanced unemployment benefits received by
most unemployed workers. What do you need to know about this development, and what can you do
to try to turn the tide at your own place of business? Here is a 10-step plan to help you attract and
retain former employees and new applicants.
7. A New Era in Florida: What Employers Need to Know About Vaccine Passport Ban and
Updated Mask Requirements – Declaring that the state is “no longer in a state of emergency,”
Florida Governor Ron DeSantis signed a bill on May 3 banning vaccine passports while issuing two
executive orders immediately suspending and invalidating local government COVID-19 restrictions,
including mask mandates. But the news doesn’t necessarily mean you should rush to ease up on
your facemask requirements for workers or visitors, nor impact your decision to mandate vaccines
for your workers. Below is a summary of the implications for Florida businesses.
8. Reversal of Fortune for California Employers: State Officials Put Brakes On COVID-19
Workplace Safety Rule Changes – For Now – In an unexpected turn of events, the California
Occupational Safety and Health Standards Board announced on May 20 that it will not move to adopt
the proposed revisions to the existing Cal/OSHA COVID-19 Emergency Temporary Standard (ETS).
Instead, the Deputy Chief of Cal/OSHA has asked that the Standards Board hold off on voting and
allow the state safety agency the opportunity to present a new proposal at a future meeting with a
targeted effective date of June 15. What does this dramatic and unexpected development mean for
California employers?
9. A Sobering Reality for Craft Breweries: 5-Step Action Plan to Address Workplace Harassment
– The brewing industry has been overwhelmed over the past few weeks with numerous accounts of
employees claiming harassment, gender discrimination, and toxic work environments. What started
as one woman’s account of harassment on her Instagram page quickly turned into an industry-wide
assault – and it will now force an awakening among brewery employers. Because just as troubling
as the accounts of unprofessional behavior are the widespread reports of company cultures that
have permitted systemic and pervasive harassment to continue in the workplace with little to no
consequence. Breweries that have been called out publicly may now be forced to answer for years of
perceived indifference both in the courtroom and in the court of public opinion. But many breweries
don’t know where to start. We are here to help with concrete steps that every brewery can take. This
five-step guide helps identify areas where your organization can improve your handling of employee
complaints and offers practical solutions that can be implemented immediately.
10. Social Security Administration Will Discontinue Sending No-Match Letters to Employers –
For Now – In recent years, a large number of U.S. employers have received letters from the Social
Security Administration advising them that one or more of their employees submitted a Form W-2
with a name that does not match their listed Social Security Number. With a new administration in
power, the SSA recently announced that it will no longer issue these so-called “no-match letters” to
employers. Instead, the agency said it will focus on making employer corrections easier and
educating employees as to the importance of accurate Social Security records – while keeping the
Copyright © 2021 Fisher Phillips LLP. All Rights Reserved.
door open for further possible action at some point down the road. What do employers need to know
about this welcome development?
11. New York Enacts Major Expansion of Workplace Health and Safety Standards to Create
COVID-Related Protections – Following an eleventh-hour agreement to make “technical changes”
to the version of the bill passed by the New York State legislature, Governor Cuomo signed into law
the New York Health and Essential Rights Act – also known as the NY HERO Act– to create
additional pandemic-related workplace protections. Drafted in response to the COVID-19 pandemic,
the Act amends state law to mandate the development and implementation of health and safety
standards targeting the spread of all airborne infectious diseases in the workplace. The majority of
obligations will kick in on June 4 – 30 days from the May 5 finalization date – although one section
does not take effect until November 1 (180 days later). Here is what New York employers need to
know about this new law – especially given that your compliance obligations will be here before you
know it.
12. Immigration Authorities to Suspend Biometrics Requirement for Work Visa Dependents in
Effort to Clear Up Backlog – The United States Citizenship and Immigration Services (USCIS)
announced through a court filing on May 3 that it will suspend biometrics requirement for several
categories of work visa dependent status application, thereby helping to speed up the adjudication of
these applications and their associated employment authorization applications. The biometrics
process involves a visit to the USCIS field office to provide fingerprints and photograph. The
suspension of this requirement started on May 17 and is expected to last until May 17, 2023 and will
cover extension and change of status for H-4, L-2, E-1, E-2, and E-3 categories. Both pending cases
and new cases will be covered by this suspension. Impacted individuals and their employers may
see a welcome relief in shortening the gap of employment authorization caused by the agency’s
delay.
13. IRS Addresses Lingering Employer Questions Regarding COBRA Premium Assistance and
Corresponding Tax Credits under the American Rescue Plan Act – The American Rescue Plan Act
(ARPA) provides for 100% premium assistance to certain qualified beneficiaries for continuation
coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) for periods of
coverage beginning on or after April 1, 2021 and ending September 30, 2021. Employers have been
grappling with a number of items left unanswered by lawmakers and subsequent DOL guidance,
including whether premium subsidies apply to dental and vision plans, whether employers can
claim tax credits for COBRA payments included in pre-existing severance agreements, whether
premium assistance will continue to apply to a spouse’s or dependent’s coverage during extended
COBRA coverage due to a second qualifying event like the death of the former employee, and what
constitutes an involuntary termination of employment that would make someone an assistance
eligible individual (AEI). IRS recently released Notice 2021-31 to help answer many of these
lingering questions. What do employers need to know about this May 18 Notice?
14. Massachusetts Enacts Yet Another COVID-19 Paid Leave Obligation for Bay State Employers
– Massachusetts Governor Charlie Baker signed legislation on May 28 creating another statewide
Copyright © 2021 Fisher Phillips LLP. All Rights Reserved.
mandate for employers to provide emergency paid leave related to COVID-19. The COVID-19 Paid
Leave obligations outlined in this article will begin 10 days from the governor’s signature, which
means you will need to quickly adjust your policies and practices before the June 7 effective date.
What do Bay State employers need to know about this latest legal compliance challenge?
15. Ohio Jumps Aboard CDC’s Masking Guidance for Those Fully Vaccinated: What Businesses
Need To Know – Following last week’s recommendation from the Centers for Disease Control and
Prevention (CDC) that fully vaccinated people are no longer required to wear a mask or socially
distance in most settings, the Ohio Department of Health just issued a new Health Order to conform
to the CDC’s guidance. What do Ohio employers – especially retail establishments – need to know
about the May 17 Revised Health Order?
16. COVID-19 Workplace Compliance Now Clearer and Simpler for Michigan Employers: The 6
Key Requirements – Michigan workplace safety authorities released highly anticipated
revised Emergency Rules on May 23 that streamline employer’s duties when it comes to responding
to COVID-19-related concerns and better reflect the most recent CDC guidance on vaccinated
individuals. The new rules from the Michigan Occupational Safety and Health Administration
(MIOSHA) most notably remove the remote working requirement and virtually all masking and
social distancing requirements for fully vaccinated employees. Further, the new MIOSHA Rules
remove many administratively burdensome requirements such as performing employee exposure
determinations and following detailed industry-specific safety requirements. In announcing the new
MIOSHA Rules via Governor Gretchen Whitmer, MIOSHA also announced that it was withdrawing its
draft permanent COVID-19 work rules, which means Michigan employers can only be subject to a
MIOSHA emergency COVID-19 work rule until October 13, 2021. In light of all the changes, this
article addresses the six key requirements all employers must follow under the revised Emergency
Rules.
17. Santa Clara County Employers Must Track Employee Vaccinations: 8 Takeaways and a 5-
Step Compliance Plan – Businesses in Santa Clara County must comply with the County’s new
vaccine tracking mandate by June 1. The County of Santa Clara Emergency Operations Center issued
a May 18 Order of The Health Officer Of the County of Santa Clara Establishing Focused Safety
Measures To Protect The Community from COVID-19 requiring businesses to obtain the vaccination
status of all “personnel” who are currently or will be working at a facility or worksite in the County.
What do Santa Clara County businesses need to know about this requirement? Here are the eight key
takeaways and a five-step compliance plan.
18. All In The Family, Part Two: Court Again Dismisses Lawsuit Alleging Family Member’s COVID-
19 Workplace Exposure Claim – A California court just struck a second blow to the lawsuit brought
by the wife of a California construction worker who alleged that her husband contracted COVID-19
from his workplace and then spread it to her. We previously reported on this case, in which the
employee’s wife alleged that her husband’s employer negligently failed to follow healthcare
protocols to avoid the spread of COVID-19 to its workers’ family members. On May 10, the U.S.
District Court for the Northern District of California ruled that it remained unwilling to entertain the
Copyright © 2021 Fisher Phillips LLP. All Rights Reserved.
theory that an employer can be held liable in these kinds of family-transmission cases. But
questions still remain about what other courts may conclude about an employer’s duty to protect
employee’s family members from contracting COVID-19, so you’ll want to review a summary of this
decision to minimize your risk of getting sued.
We will continue to monitor developments related to all aspects of workplace law. Make sure you are
subscribed to Fisher Phillips’ Insight system to get the most up-to-date information. If you have
questions, contact your Fisher Phillips attorney.
Related People
James F. Glunt
Partner
412.822.6621
Email
Carola Murguia
Associate
858.597.9600
Email
Copyright © 2021 Fisher Phillips LLP. All Rights Reserved.
Ilanit Fischler
Associate
954.847.4723
Email
Alex Castro
Associate
954.847.4714
Email
Copyright © 2021 Fisher Phillips LLP. All Rights Reserved.
Jeffrey D. Winchester
Of Counsel
702.862.3868
Email
Ralph Hua
Partner
206.247.7014
Email
Copyright © 2021 Fisher Phillips LLP. All Rights Reserved.
Amanda M. Blair
Associate
212.899.9989
Email
A. Kevin Troutman
Partner
713.292.5602
Email
Copyright © 2021 Fisher Phillips LLP. All Rights Reserved.
Phillip C. Bauknight
Partner
908.516.1059
Email
Patrick W. Dennison
Partner
412.822.6627
Email
Copyright © 2021 Fisher Phillips LLP. All Rights Reserved.Kristin R.B. White
Partner
303.218.3658
Email
Todd B. Logsdon
Partner
502.561.3971
Email
Copyright © 2021 Fisher Phillips LLP. All Rights Reserved.Richard R. Meneghello
Senior Director of Content
503.205.8044
Email
Kristin L. Smith
Of Counsel
713.292.5621
Email
Copyright © 2021 Fisher Phillips LLP. All Rights Reserved.Robert M. Robenalt
Partner
614.453.7611
Email
Benjamin Dudek
Associate
803.255.0000
Email
Copyright © 2021 Fisher Phillips LLP. All Rights Reserved.Amanda Buchan
Associate
206.247.7015
Email
Megan L. Janes
Associate
954.847.4717
Email
Copyright © 2021 Fisher Phillips LLP. All Rights Reserved.Emily N. Litzinger
Partner
502.561.3978
Email
Joseph Nelson
Associate
440.740.2107
Email
Copyright © 2021 Fisher Phillips LLP. All Rights Reserved.Hannah Sweiss
Associate
818.230.4255
Email
Carlton C. Pilger
Of Counsel
404.240.4141
Email
Copyright © 2021 Fisher Phillips LLP. All Rights Reserved.Alyssa Graf
Associate
818.230.4263
Email
Anthony Isola
Associate
415.490.9018
Email
Copyright © 2021 Fisher Phillips LLP. All Rights Reserved.Stephen R. Gee
Associate
248.540.7041
Email
Nicole E. Stenoish
Associate
858.597.9632
Email
Copyright © 2021 Fisher Phillips LLP. All Rights Reserved.Amy L. Lessa
Partner
858.597.9612
Email
Joshua D. Nadreau
Partner
617.722.0044
Email
Copyright © 2021 Fisher Phillips LLP. All Rights Reserved.Zinnia Khan
Associate
617.904.7442
Email
Myra K. Creighton
Partner
404.240.4285
Email
Copyright © 2021 Fisher Phillips LLP. All Rights Reserved.Jeffrey D. Smith
Partner
440.838.8800
Email
Service Focus
Wage and Hour
Workplace Safety and Catastrophe Management
Immigration
Counseling and Advice
Litigation and Trials
Employee Benefits and Tax
Employment Discrimination and Harassment
Employee Leaves and Accommodations
Industry Focus
Gig Economy
Hospitality
Copyright © 2021 Fisher Phillips LLP. All Rights Reserved.You can also read
