Employers Take Note: Updates on Required Federal Forms and Reports

Form 1-9
The Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) have extended the flexibility in complying with requirements related to Form I-9 until October 31, 2022. See our earlier blog for more information on how to obtain, remotely inspect, and retain copies of the identity and employment eligibility documents to complete Section 2 of Form I-9.

EEO-1 Component Data Report
On April 12, 2022, the EEOC announced that data collection for 2021 EEO-1 Component 1 filing is now open. Private employers with 100 or more employees must file and certify their EEO-1 Component data report(s) by May 17, 2022.

Employers can visit the EEOC’s dedicated website to access the EEO-1 Component Online Filing System and obtain other resource materials. The EEOC has also created a new Filer Support Team Message Center to answer questions and assist employers.

We continue to monitor important legal and HR developments, as well as COVID-related updates from federal, state, and local authorities. Please keep watching our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

Spring Cleaning: Is Your Handbook House in Order?

The time has arrived when thoughts turn to warmer weather and spring-cleaning projects. It is a good time for employers to review their employee handbooks to insure they comply with applicable laws and reflect best practices and emerging trends. This spring, a review may be particularly important, as many employers face two key challenges: 1) welcoming current employees back to the post-pandemic workplace; and 2) recruiting and retaining talented employees amidst a persistent labor shortage.

As you assess the experience of current employees in your post-pandemic workplace, consider reviewing handbook policies that address:

  • Telecommuting/hybrid/remote work
  • Unique leave requirements under applicable state laws
  • Time reporting procedures for remote or hybrid non-exempt employees
  • Anti-harassment/respectful workplace requirements
  • Reasonable accommodation policy as it may apply to COVID-19 situations
  • Flexible scheduling options for employees who may continue to experience pandemic-related challenges

If you are struggling to hire and keep qualified and committed employees, examine whether your handbook policies reflect your inclusive and engaging work experience. Consider policies that highlight:

  • Your organization's distinctive mission, vision, values, voice, and culture
  • Your wide array of benefits and perks
  • Opportunities for professional development and advancement
  • Tuition assistance for lifelong learners
  • Wellness/mindfulness benefits
  • Volunteer or civic engagement opportunities
  • Employee Assistance Programs
  • Summer schedules and/or other unique flexible scheduling arrangements
  • Time off policies that encourage positive work/life balance

Your employee handbook should be a dynamic tool to ensure legal compliance, communicate expectations and benefits, and enhance relationships with all employees. Take some time this spring to give it a fresh look and ensure that it accomplishes these goals. The Lake Effect team is here to help.

Lake Effect is here to answer your questions about handbooks and innovative employment policies. We continue to monitor important legal and HR developments, as well as COVID-related updates from federal, state, and local authorities. Please keep watching our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

EEOC’s New COVID-19 Guidance: Employee Caregivers and Religious Exemptions

The EEOC recently revised its What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws guidance document to address two issues: the treatment of pandemic-related caregivers (Section I), and religious objections to the COVID-19 vaccine (Section L).

With respect to pandemic-related caregivers, referring to employees who are caring for their family members and loved ones, the new EEOC guidance confirms:

  • Employees do not have a right to any accommodations to handle caregiving duties under federal EEO laws. However, they may have rights under the FMLA or analogous state leave laws.
  • Employers need not excuse poor performance that results from caregiving duties. However, performance standards must be applied consistently to all employees.
  • Employers may not treat female employees better or worse because of gender-based assumptions about pandemic-related caregiving responsibilities. For example, an employer may not:
    • pass women over for promotions or high-profile projects requiring overtime or travel out of fear they will need more time off;
    • require pregnant workers to telework or limit contact with colleagues or customers;
    • grant male employees less flexibility than females to care for family members infected by COVID-19.
  • Employers must require the same process for employees of any race, gender, national origin, etc. who request COVID-19 related schedule changes or leaves.
  • Employers may not discriminate against caregivers based upon their association with an individual with a disability. For example, an employer may not:
    • refuse to hire an applicant out of fear that their caregiving responsibilities for a person at high risk of COVID-19 complications will increase healthcare costs;
    • refuse an employee’s request for leave to care for a parent with long-COVID while approving other employees’ leave requests to handle other personal responsibilities.
  • Employers may not assume that older workers with caregiving responsibilities need special treatment or lack the stamina to perform their job while providing caregiving duties.
  • Employers must take steps to prevent and respond to workplace harassment or retaliation based upon an employee’s pandemic-related caregiving responsibilities.

Additional examples and details may be found in the related EEOC technical assistance document.

On the issue of religious objections to the COVID-19 vaccine, the new EEOC guidance clarifies:

  • Employees must tell employers that they are requesting an exception to a COVID-19 vaccine mandate based upon a sincerely held religious belief, but they need not use any “magic words.”
  • Objections to a COVID-19 vaccination requirement that are based on social, political, economic views, or personal preferences do not qualify as religious beliefs or justify an exemption.
  • The EEOC’s internal religious accommodation request form is one example of a form employers could use for employee requests. This form is just an example and not required in this format.
  • Employers should normally assume that a religious accommodation request is based upon a sincerely held religious belief, but it may ask for additional information if it has an objective basis for doing so (i.e., suspicious timing or inconsistent behavior), and employees must cooperate with the inquiry.
    • While prior inconsistent conduct by the employee may be relevant to the question of sincerity, it is not conclusive because a person’s beliefs may change over time.
    • No one factor is determinative on the question of sincerity, and employers should evaluate objections on an individual basis.
  • Employers should consider reasonable accommodations to vaccinations, including telework and reassignment, if they do not impose an undue hardship. If there is more than one possible accommodation, the employer may choose which one to offer.
  • Employers need not bear more than a  minimal cost to accommodate an employee’s religious belief. Costs include both monetary costs and any burden on the employer’s business (i.e., where it would impair workplace safety, diminish the efficiency of other jobs, or cause coworkers to shoulder too much of the hazardous or burdensome work). Another relevant consideration is the number of other employees who are seeking a similar accommodation, thus resulting in a burdensome cumulative cost to the employer.
  • An undue hardship assessment must be based on objective information, not speculation or hypotheticals.

While serious COVID-19 infection rates are falling nation-wide, complicated issues may arise as more employees return to the physical workplace. Please reach out to your Lake Effect partners for any help you may need.

Lake Effect is here to answer your questions about COVID-19 compliance and will continue to monitor important legal and HR developments, as well as COVID-related updates from federal, state, and local authorities. Please watch our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

Biden Administration Bans Arbitration of Workplace Sexual Harassment Claims

On March 4, 2022, President Biden signed ithe “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act,” a new law banning mandatory arbitration for workplace sexual assault and sexual harassment claims. Arbitration is a form of dispute resolution outside of the court system. Many employment contracts broadly require employees to resolve claims against employers in arbitration.

This legislation makes language in existing and future employment contracts related to compulsory arbitration of sexual harassment and sexual assault claims unenforceable, at the option of the person bringing the claim. The law does not impact arbitration of other types of employment disputes, and applies to claims and disputes going forward, not past or pending claims. A person bringing a workplace sexual harassment or assault claim may still choose to resolve the claim through arbitration, or they may elect an alternative forum such as mediation, administrative agency proceedings, and/or state or federal court.

In light of this new law, employers should consider the following steps:

  • Review Employment agreements
    Employers should review employment agreements for language about mandatory arbitration. We can assist in this review.
  • Evaluate voluntary mediation services
    Nothing in the new legislature prohibits an employee from resolving disputes outside of court voluntarily. If disputes arise in the workplace, mediation is often a good option for all parties. Mediation is voluntary, confidential, and self-determined, meaning the parties come up with solutions to resolve the dispute. If you would like to learn more about Lake Effect’s mediation services, please contact us.
  • Reiterate your commitment to creating a harassment-free environment 
    Kindness is part of our mission and core values at Lake Effect. Our passion is helping employers cultivate kind environments, where workplace harassment has no place. Contact us to assist with leadership training, employee training, workshops, coaching, and other options that may fit your needs.

Lake Effect is here to answer your questions about compliant employment agreements and workplace dispute resolution. We continue to monitor important legal and HR developments, as well as COVID-related updates from federal, state, and local authorities. Please watch our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

CDC’s Latest Guidance: To Mask or Not Mask

On February 25, 2022 the CDC updated its masking guidance. The new recommendations are customized according to community risk. Each county across the US is designated “high,” “medium,” or “low” risk.

  • “High” risk counties: residents are advised to mask indoors in public.
  • “Medium” risk counties: residents should mask in some situations, including in high risk settings (for example in schools, indoor crowds, and congregate settings), if around individuals who are at high risk of severe illness, or if an individual’s doctor recommends masking.
  • “Low” risk counties: residents need not mask.

Regardless of risk designation, the CDC recommends testing if symptomatic, vaccinating if eligible, and improving ventilation in indoor settings if possible.

CDC guidance is not mandatory, but it may assist employers as they establish and implement their own COVID related safety policies for the workplace. Following CDC guidance may also assist in demonstrating compliance with OSHA’s “general duty” clause, which requires all employers to provide a workplace free from known health and safety hazards.

Each employer will be faced with challenging decisions about whether and how to implement the new CDC masking guidelines into workplace safety policies. Soliciting input from your leadership team and employees may be helpful as you continue to manage changes brought about by the COVID-19 pandemic. Renew your commitment to a respectful workplace and encourage your employees to treat one another accordingly during these times of transition. If you need help navigating these changes, please reach out to any of the Lake Effect attorneys or HR professionals.

Lake Effect is here to answer your questions about COVID protocols and mitigation in the workplace. We continue to monitor important legal and HR developments, as well as COVID-related updates from federal, state, and local authorities. Please watch our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

Share the Love with Your Employees

It’s Valentine’s Day, the day we show a little extra love to those who are special to us. After the last two years, we all need a few more candy conversation hearts. Take a few moments today to take care of yourself and encourage your team to do the same. As we move through 2022, continue to practice self-care and provide your staff with resources to support their mental wellness, engagement, and professional development.

Take time for self-care. Leaders, we see you taking care of your staff, customers, and families. Thank you for all you do! Please keep your tank filled and battery charged so you can continue to take care of others. Take a moment for you!

Tell your staff you appreciate them. Everyone wants to be seen and appreciated. A heartfelt thank you can go a long way. You know your staff the best, so make the message meaningful to each recipient.

Provide your team members with the resources they need. More than ever before, employees are seeking flexible work schedules, hybrid work environments, professional growth, a supportive workplace culture, and relevant benefits. Ask your employees what they need to be successful in their roles while balancing their personal responsibilities. Here are a few ideas to bring that to life:

  • Remind your team members to take time for self-care – and remind them again
  • Lead by example by taking care of yourself
  • Implement a flexible work schedule
  • Consider a 4-day work week or reduced schedule
  • Review workloads, including the leaders within your organization
  • Develop a buddy system to check in on each other, especially in a remote or hybrid work environment
  • Create an environment where it feels safe to say “I need help on a project” or “I need a break to step away for an hour”
  • Encourage staff to volunteer in the community to support causes that are important to them
  • Post your Employee Assistance Plan (EAP) access information so it is easily accessible
  • Remind your employees about some of the hidden perks within your benefits plans: discounts on massage, credits for workouts, wellness resources and apps, and the like
  • Partner with local nonprofits to provide mental wellness resources to your staff
  • Implement or expand a coaching and development program to help employees align their professional development goals with your organization’s strategic initiatives
  • Practice empathic leadership, fostering a sense of meaningful connection and belonging

During the past two years, the Lake Effect team has been doing something together every month. We have done virtual 5K’s, laughed while attempting to do virtual workouts together, shared reading suggestions, and even tried cooking the same recipe together via Zoom. This month, we are challenging ourselves to do three things every day and we would LOVE you to join us in the challenge: do something each day for yourself physically, mentally, and professionally.  

As we close on this Valentine’s Day, Jane is supporting a local restaurant, Sheila is heading out for a run, Holly is making memories with her kids, Leann is taking a vacation with her family, Jenn is volunteering her time delivering flowers, and Tricia is playing outside soaking up the sunshine. Tell us how you are taking care of yourself this month.

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I-9: Extension to Remote Validation

** Update December 2021**

The Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) have extended the flexibility in complying with requirements related to Form I-9 until April 30, 2022. See our earlier blog for more information on how to obtain, remotely inspect, and retain copies of the identity and employment eligibility documents to complete Section 2 of Form I-9.

We continue to monitor important legal and HR developments, as well as COVID-related updates from federal, state, and local authorities. Please keep watching our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

Benefit Limits for 2022

Each year, the IRS sets new limits for employee benefits plans and retirement plans. Please see below for Lake Effect’s ready reference chart setting forth the Benefits Limits for the 2022 tax year. A PDF of this information can be downloaded here.

 

2021 2022
Flexible Spending Accounts (FSAs)
Healthcare FSA max election (per year) (incl. LTD FSA) $2,750 $2,850
Healthcare FSA max rollover $550 $570
Dependent Care FSA max election (per year) (Single or Married Filing Jointly) $5,000 $5,000*
Dependent Care FSA max election (per year) (Married Filing Separately) $2,500 $2,500*
Transportation Benefits
Parking Account $270/mo $280/mo
Transit Account $270/mo $280/mo
High Deductible Health Plan Requirements to Contribute to an HSA
HDHP min annual deductible - Self-only $1,400 $1,400
HDHP min annual deductible - Family $2,800 $2,800
HDHP out-of-pocket max - Self-only $7,000 $7,050
HDHP out-of-pocket max - Family $14,000 $14,100
HSA max contribution limit - Self-only $3,600 $3,650
HSA max contribution limit - Family $7,200 $7,300
HSA catch up contribution limit (age 55) $1,000 $1,000
ACA Plan Limits
Maximum Out-of-Pocket (Self-only or Individual in a Family) $8,550 $8,700
Maximum Out-of-Pocket (Family) $17,100 $17,400
Salary Thresholds for Non-discrimination Testing
Highly compensated employees $130,000 $135,000
Key employees $185,000 $200,000
Retirement Plans (401(k), 403(b))
Max employee elective contributions for those 49 and younger $19,500 $20,500
Max employer + employee contributions for those 49 and younger $58,000 $61,000
Max employee catch-up contributions for those 50+ $6,500 $6,500
Max employee elective contribution plus catch-up for those 50+ $26,000 $27,000
Max employer + employee contributions for those 50+ $64,500 $67,500

*As of the time of drafting this blog, the dependent care limits for 2022 reverted to the pre-ARPA levels

Lake Effect is here to answer your questions about benefits administration and how best to structure your benefits plans to be a leading employer. We continue to monitor important legal and HR developments, as well as COVID-related updates from federal, state, and local authorities. Please watch our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

OSHA Issues COVID-19 Vaccination and Testing Emergency Temporary Standard

On November 4, 2021, OSHA issued its Emergency Temporary Standard (ETS)  and a helpful FAQ detailing the federal mandatory vaccination and testing requirements for large employers across the country. The ETS is lengthy and detailed, but major highlights include the following:

  • Who: The mandatory vaccination and testing requirements apply to US employers with at least 100 employees firm or corporate-wide at any time the ETS is in effect (“covered employers”).
    • The ETS does not apply to workplaces already covered by Federal Workforce Task Force Guidance or federal contractors and subcontractors already covered under Executive Order 14042.
    • Even if their employer is covered, the ETS does not apply to employees who do not report to a workplace where other people are present, employees working from home, or employees who work exclusively outdoors.
  • When: The ETS is effective immediately upon its publication in the Federal Register on November 5, 2021. On or before December 5, 2021, employers must be in compliance with all ETS provisions (including requiring all unvaccinated employees to wear masks) other than weekly testing for employees who are not fully vaccinated. On or before January 4, 2022, employers must be in compliance with all ETS provisions, including requiring weekly testing for unvaccinated employees.
  • Key requirements: The ETS established minimum vaccination, vaccination verification, face covering, and testing requirements. Covered employers must do the following:
    • Develop, implement, and enforce a mandatory COVID-19 vaccination policy (or a policy allowing alternative weekly COVID-19 testing and masking). Provide written information about the ETS and related policies to all employees.
    • Determine the vaccination status of each employee, obtain acceptable proof of vaccination, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status.
    • Provide employees reasonable time, including up to 4 hours of paid time, to receive vaccination doses, and reasonable time and paid sick leave to recover from possible side effects after each dose.
    • Require employees to receive the necessary shots to be fully vaccinated -- either two doses of Pfizer or Moderna, or one dose of Johnson & Johnson – by January 4, 2022.
    • In the alternative, ensure that each employee who is not fully vaccinated by January 4, 2022 is tested for COVID-19 at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from work for a week or more). Covered employers are not required to pay for such testing under the ETS, although they may be required to do so under other applicable laws or collective bargaining agreements. The ETS lists permissible tests upon which covered employers and employees may rely.
    • Require employees to immediately provide notice if they receive a positive COVID-19 test or are diagnosed with COVID-19, and immediately remove such employees from the workplace, keeping them out until they meet criteria for returning to work.
    • Require every employee who is not fully vaccinated to wear a face covering when indoors or in a vehicle with another person for work purposes.
    • Report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them and work-related in-patient hospitalizations within 24 hours of learning about them.

For additional information about complying with these new detailed ETS requirements, contact your partners at Lake Effect.

Lake Effect is here to answer your questions about federal, state, and local regulations that impact employers across all industries. We continue to monitor important legal and HR developments, as well as COVID-related updates from federal, state, and local authorities. Please watch our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

US Department of Labor Issues Final Rule on Tipped Workers

On October 28, 2021, the US Department of Labor (DOL) issued its Final Rule on tipped workers, establishing when tipped employees can be paid less than the federal minimum wage, an issue that has been in a state of flux over the last several years. The Final Rule will take effect on December 28, 2021. Lake Effect’s prior blog on this issue provides additional information and history on this topic.

Background: Under the Fair Labor Standards Act (FLSA), employers must pay employees no less than the current minimum wage of $7.25/hour. However, the FLSA allows employers to take a “tip credit” for employees who normally earn at least $30/month in customer tips. This means that employers may pay tipped employees a reduced minimum wage of $2.13/hour, instead of $7.25/hour, if they make sure that the employees earn at least $5.12/hour in tips, thus reaching the statutory minimum of $7.25/hour.

The Issue: Although this seems a straight-forward rule, its application becomes challenging when a tipped employee like a waiter spends some work time completing non-tipped work, like wiping down tables or folding napkins. Because the employee does not earn customer tips while performing such duties, the DOL has historically scrutinized an employer’s ability to take the tip credit (i.e., pay the lower hourly rate of $2.13/hour) for all of the employee’s work hours. The question has lingered, “When does an employee’s non-tipped work becomes so time consuming that the employer should lose the tip credit and pay the full federal minimum wage to that employee?”

DOL’s Answer: The DOL’s Final Rule identifies three categories of work that may be performed by tipped employees and specifies the FLSA pay requirements for each:

  1. tip producing work that provides service to customers and for which tips are normally received (i.e., a server provides table service, or a bartender makes and serves drinks): an employer may take the full tip credit and pay an employee $2.13/hour for this work, assuming the employee’s tips make up the remainder of the minimum wage requirement.
  2. directly supporting work performed by a tipped employee in preparation for tip-producing work (i.e., a server refills condiments and rolls silverware, or a bartender slices fruit for drinks): the “80/20 principle” applies. If a tipped employee spends more than 20% of their work week performing directly supporting work, the employer must pay them the full minimum hourly wage of $7.25/hour for that work. In addition, if an employee spends more than 30 continuous minutes performing directly supporting work, the employer must pay full minimum wage for any time that exceeds 30 minutes. This rule applies regardless of whether the 80/20 rule applies to the employee’s overall work week.
    • Directly supporting work” includes idle time spent waiting to serve customers.
    • If an employee performs dual jobs for an employer, one that normally produces tips and one that does not, only time spent performing the tipped job is considered in applying the 80/20 work week principle.
  3. work that is not part of or supportive of the employee’s tipped occupation (i.e., server prepares food and cleans bathrooms, or bartender cleans the dining room): an employer must pay the employee the full minimum wage of $7.25/hour for all time spent on this work.

Challenges Ahead: Although intended to provide clarity on the issue of tipped employees, DOL’s Final Rule will require many employers to revamp their employee scheduling, timekeeping, and task-tracking processes. It will be especially important for employers to closely monitor employee time spent on “directly supporting work” so that they can properly apply the 80/20 and 30-minute continuous duration rules. To avoid uncertainty and minimize administrative burdens, some employers might consider foregoing the tip credit altogether. Your partners at Lake Effect can help assess your pay practices and navigate the new FLSA rules for tipped employees.

Lake Effect is here to answer your questions about federal and state wage and hour laws that impact employers across all industries. We continue to monitor important legal and HR developments, as well as COVID-related updates from federal, state, and local authorities. Please watch our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

Lake Effect HR & Law, LLC
(844) 333-5253 (LAKE)
info@le-hrlaw.com

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