DOL clarifies FLSA’s “amusement or recreational establishment” exemption

On January 15, 2021, the Wage and Hour Division (WHD) of the US Department of Labor issued opinion letter FLSA2021-3. The letter explores the scope of Section 13 (a)(3) of the Fair Labor Standards Act (FLSA), which creates an exemption from the minimum wage and overtime provisions for “an employee employed by an establishment which is an amusement or recreational establishment, organized camp, or religious or non-profit educational conference center.” In addition to meeting this definition, an entity must satisfy either a “calendar test” or a “receipts test,” designed to limit the exemption to employees of truly seasonal operations.

Examining three different entities, the WHD concluded as follows:

  • In order to be an “establishment” under Section 13 (a)(3) of the FLSA, an entity must have a distinct physical location for its recreational operations. An entity that organizes and leads nature walks, hikes, daytrips, and overnight camping trips for children does not meet this definition. The entity has a recreational character and purpose. However, it maintains an office solely for administrative purposes; its trips do not meet, leave from, or return to that office. Therefore, its recreational operations do not have a “distinct physical location” over which it exerts control as required to satisfy the “establishment” exemption.
  • A non-profit religious ministry that runs a year-round camp/ retreat center and uses an accrual method of accounting cannot satisfy the “receipts” test under Section 13 (a)(3) of the FLSA. To qualify for the exemption, an entity must show that during the preceding calendar year, its average receipts for any six months of the year were not more than 33 ⅓ percent of its average receipts for the other six months of that year (of note, the months need not be consecutive). For purposes of the FLSA exemption, “receipts” means money actually received and does not incorporate accrual accounting principles. Furthermore, “receipts” under Section 13 (a)(3) refers to money received in exchange for goods or services and does not include charitable donations.
  • An entity that plans and produces thousands of events at various locations each year for companies, non-profits, and other organizations is not an “establishment” under Section (a)(3) of the FLSA. While it maintains a warehouse and administrative offices, it does not exert control, even for a limited period, over fixed locations that have amusement or recreational character. It simply helps produce events on premises that are held and controlled by its clients.

While WHD opinion letters can provide valuable guidance to covered employers, they are based upon the facts of the specific case presented. Therefore, the scope of their legal impact is often uncertain. Employers whose seasonal employees may qualify for the “amusement or recreational establishment” exemption should work closely with legal counsel to determine whether the exemption is likely to apply.
We continue to closely monitor developments in this area and will provide you with important updates.

Lake Effect is here to answer your questions about federal and state issues affecting 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.

State Employment Laws to Consider with Remote Workers

Employers across the country – from small nonprofits to multi-national corporations – are grappling with whether and how to maintain a remote workforce with employees in multiple states. There are distinct advantages to allowing employees to work from their home, wherever that may be, and opening the applicant pool to a remote workforce. (See our previous blog on how to sustain company culture with a remote workforce.)

When evaluating remote employment plans, it is critical for employers to review the state and local laws that apply to workers outside of Wisconsin. Many of those laws apply even if an employer has only one part-time employee working in the remote location. Below are some of the important legal issues to consider:

  • Paid Sick Leave. States and municipalities across the country have enacted mandatory paid sick leave laws, most of which apply to all employees working in the particular state, county, or city. An employer’s PTO policy generally will comply with the paid sick leave law if the PTO provides a specified minimum level of benefits. However, employers should review the specifics of any relevant paid sick leave laws, including the laws’ required notices to employees. Those notices may need to be included in a handbook and/or with paystubs.
  • Paid Family and Medical Leave. At least nine states and the District of Columbia have also enacted mandatory paid family and medical leave laws that apply to all part-time and full-time employees working in the state or district. The leave programs differ in the amount of leave that must be provided, benefits, eligibility requirements, required notices, and how the programs are funded. Employers should review these laws if applicable and ensure their leave policies comply.
  • Employee agreements. State laws vary dramatically as to the enforceability of non-competition and non-solicitation agreements. Most states require these agreements to include limitations on their geographic scope and length of restriction. Some states also require employers to give the employee something, such as a bonus or promotion, in exchange for signing a non-compete or non-solicitation agreement while others require specific language be included in these agreements. Some states prohibit all non-competes (D.C. is currently considering such legislation) while some prohibit non-competes with employees who are paid below a specified wage threshold. To reduce the risk of an employee agreement being struck down by a court, it is important to review the applicable state laws and incorporate all requirements.
  • Pay history and criminal background checks. When recruiting nationwide, employers should ensure they are complying with the growing number of laws limiting or prohibiting inquiries into an applicant’s pay history or criminal background. These laws were largely enacted to create more opportunities for women and people of color. They also reflect HR best practices. Inquiring into pay history and/or criminal background may unnecessarily limit the applicant pool and hinder efforts to create a more inclusive workplace culture.
  • Anti-harassment training. At least six states, including Illinois, require employers to provide anti-harassment training to employees and supervisors working in their state. Other states encourage, but do not require, anti-harassment training. Even if not legally required or encouraged, we recommend employers provide anti-harassment training at least every other year.
  • Business Expenses. As more employees are working from home, employers should review their business expense policies for compliance with the laws of the state in which employees work. For example, California and Illinois have specific laws on what business expenses must be reimbursed by an employer.
  • Drug testing. Drug testing laws vary from states such as Minnesota, with strict policy and process requirements to states such as Wisconsin where the laws are more lenient. Employers who require drug tests also should take into consideration whether the recreational and/or medicinal use of marijuana has been legalized in the state where the employee works. Over 30 states and municipalities have legalized marijuana in some form.
  • General employment laws. Each state has enacted its own general employment laws covering, for example, minimum wage, other wage and hour requirements, workplace safety, workers’ compensation, unemployment insurance, and anti-discrimination. Employers should review these laws and ensure their employee handbook, policies, trainings, and practices are in compliance.

Lake Effect is here to answer your state and federal employment law and HR questions related to a remote workforce. 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.

DOL Issues Final Rule on Independent Contractor Status under FLSA

On January 6, 2021, the US Department of Labor announced a final rule establishing the test for whether a worker will be classified as an independent contractor or an employee under the Fair Labor Standards Act (“FLSA”). The final rule adopts the “economic reality” test, which was set forth in the DOL’s proposed rule published in September 2020. Under that test, the two core factors are the nature and degree of control over the work and the worker’s opportunity for profit or loss. For a full discussion of that test, these key factors, and other relevant considerations, please review Lake Effect’s September 22, 2020 blog on the DOL’s proposed rule. The final rule also reiterates that the actual practice of the employer and the worker will govern the inquiry, not contractual language or theoretical possibilities.

The final rule will be published in the Federal Register on January 7, 2021 and take effect on March 8, 2021.

Keep in mind that DOL’s final rule is unlikely to fully resolve this challenging issue for most employers. Many states have adopted their own tests for independent contractor status, and these can vary widely from state-to-state, and even within a state, depending upon the issue being addressed (i.e., unemployment eligibility, wage and hour, tax liability). Lake Effect continues to monitor federal and state laws and guidance relating to independent contractor status, and we will keep you apprised of developments in this area.

Lake Effect is here to answer your questions about independent contractors, FLSA, and labor laws. 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.

Lake Effect HR & Law is in business to maximize each client’s workplace potential with a commitment to kindness, true partnership, and exceptional service.

DOL Issues Timely Wage and Hour Rule and Guidance

Over the last few weeks, the Department of Labor (DOL) has been busy ticking items off its to-do list. We have seen action on everything from tip pooling to employee notices to travel time.

Tip Pooling and Tip Credits
In October, 2019, Lake Effect blogged on the Department of Labor’s (DOL) proposed new Fair Labor Standards Act (FLSA) regulations on tip pooling, tip credit, and payments to tipped employees. The DOL published the Final Rule on December 22, 2020, implementing most of the changes to tip pooling and tip payments that were proposed in 2019. See also a helpful summary and FAQ provided by the DOL. The Final Rule is effective March 1, 2021.

This new rule will be helpful for restaurant, bar, and hospitality employers making plans to expand or resume operations in the coming months. Many hospitality employers have implemented – or may now consider implementing – tip pools to supplement employee compensation, improve morale, and incentivize all workers to maximize performance. In short, tip pooling can be a useful tool to enhance employee recruitment and retention.

The new tip credit and tip pooling regulations include the following:

  • No tips for managers, supervisors, or employers: The regulations expressly prohibit employers from keeping employees’ tips and likewise prohibit managers and supervisors from sharing any employee tips, regardless of whether the employer takes a tip credit and regardless of the type of tip pool implemented. Employers who retain pooled tips or share them with managers or supervisors will be subject to civil penalties under the new regulations.
    • Relying on the FLSA duties test, a manager or supervisor is defined as any employee (1) whose primary duty is managing the enterprise or a customarily recognized department or subdivision of the enterprise; (2) who customarily and regularly directs the work of at least two or more other full-time employees or their equivalent; and (3) who has the authority to hire or fire other employees, or whose suggestions and recommendations as to the hiring or firing are given particular weight.” This also includes any workers “who own at least a bona fide 20 percent equity interest in the enterprise in which they are employed and who are actively engaged in its management.”
  • No 80/20 rule for tip credits: The regulations remove the long-standing 80/20 rule that required employers who take a tip credit (see our prior blog for an overview of tip credits) to carefully track the amount and timing of non-tipped work that employees perform. Under the new regulations, employers may take the tip credit regardless of the amount of non-tipped work an employee is performing provided the normally non-tipped work is performed “contemporaneously with” or “for a reasonable time immediately before or after” their normally tipped work duties.
  • Employers who take a tip credit are limited to a traditional tip pool: Employers who take a tip credit may create only a “traditional tip pool,” which is limited to employees who “customarily and regularly” receive tips.
  • Employers who do not take a tip credit have two tip pool options: Employers who do not take a tip credit now have two options for tip pooling. Employers may create a “traditional tip pool” and/or a “nontraditional tip pool,” which includes employees who do not regularly receive tips, such as cooks and dishwashers.
  • Record-keeping of tip credit and tip pool: Employers who take a tip credit or create tip pools must identify on their payroll records each employee who receives tips and maintain records of the weekly or monthly amount of tips received by employees, as reported by the employee to the employer. Employers can rely on employees’ information tracked on IRS Form 4070.
  • Timing of payment of tip pool tips: Employers must pay their employees the pooled tips no later than the date on which regular wages are paid to employees and, for credit card based tips, “as soon as practicable after the regular payday.” This further supports the requirement that employers must not retain tips.

Electronic Posting of Required Labor Law Posters
Acknowledging that telework will likely continue for the foreseeable future in many workplaces, the DOL provided new guidance regarding labor law posters. In a field assistance bulletin issued on December 29, 2020, the DOL confirmed that employers can satisfy applicable employee notice obligations by providing required labor law postings to employees on the internet or an intranet. Employers also must display hard copies of the posters in the actual workplace for applicants and employees who are unable to telework.

Compensation for Personal Activity Travel Time
Again acknowledging the continuation of telework, the DOL issued a wage and hour opinion letter on December 31, 2020 addressing the issue of travel time to/from work and home when an employee works part of the day remotely and part of the day in the worksite, and engages in personal activities during their travel time. The DOL reiterated that a non-exempt employee does not need to be paid for time the employee is off duty and is not working, nor for commuting time. The DOL also reinforced that the continuous workday doctrine would not apply to the fact patterns presented by the employer because, during the travel time for personal activities, the employee was clearly off duty, could use their time for their own purposes, and could choose when they would resume work at home or at the worksite. Likewise, the employee’s commuting time to and from work, during which time the employee performed no work duties, was not compensable commuting time.

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For additional information and discussion of DOL rule making, rules, and guidance, please see Lake Effect’s prior blogs on wage and hour issues. We will continue to closely monitor all developments in this area and provide you with important updates.

Lake Effect is here to answer your questions about federal and state issues affecting 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.

Lake Effect HR & Law is in business to maximize each client’s workplace potential with a commitment to kindness, true partnership, and exceptional service.

President Trump Signs COVID-19 Emergency Relief Bill

After an unexpected delay during which he strongly criticized the stimulus legislation passed by Congress on December 21, President Trump signed the $900 billion COVID-19 emergency relief bill into law on December 27, 2020. The new legislation aims to help individuals, businesses, and organizations across the country to offset the devastating economic effects of the COVID-19 pandemic.

Key provisions of the Emergency Relief bill include:

  • Direct payments to individuals: provides a one-time payment of $600 to individuals earning up to $75,000 per year. Couples earning up to $150,000 per year will receive $1,200. Caregivers will receive an additional $600 for each dependent child.
  • Additional Paycheck Protection Program (PPP) loans, Economic Injury Disaster Loans (EIDL), and other small business support: provides additional funds for first and second PPP loans to eligible recipients, with dedicated funds for small and minority-owned  businesses, as well as additional small business and EIDL grants.
    • Most new provisions apply to PPP loans made before, on, or after date of enactment of current stimulus bill.
    • PPP loan eligibility is expanded to include housing cooperatives, news organizations and 501(c)(6) nonprofit organizations, but publicly traded companies are specifically excluded from new PPP loan eligibility.
    • Forgivable PPP loans may be used to cover operations expenses (e.g., software, cloud computing, accounting needs), property damage due to public disturbances, supplier costs, and PPE expenditures; employer-provided group insurance benefits are included in payroll costs (e.g., group life, disability, health, vision, dental insurance).
    • Certain organizations with fewer than 300 employees may receive a second PPP loan of up to $2 million. The 60/40 cost allocation between payroll and non-payroll costs for full forgiveness will continue to apply.
    • Eligible organizations must have experienced a 25% drop in gross receipts in 2020 compared to a comparable quarter in 2019.
    • The covered period (whether an employer elects an 8-week or 24-week period) for all PPP loans is extended through 3/31/21.
    • Deductions are allowed for otherwise deductible business expenses paid for with proceeds of a PPP loan that is forgiven.
    • Recipients of PPP loans under $150,000 may utilize a simplified forgiveness request process.
    • Organizations that receive both an EIDL grant and a PPP loan need not deduct forgiven amount of EIDL grant from the forgivable amount of their PPP loan.
    • SBA is authorized to award grants to eligible live venue operators, theaters, performing arts organizations, museums, motion picture theaters, etc. to be used for payroll costs, rent, utilities, and Personal Protective Equipment (PPE).
    • Additional targeted EIDL grant funding is provided for low-income communities, and the covered period for Emergency EIDL grants is extended through 12/31/21.
  • Unemployment Assistance: provides for supplemental federal unemployment benefits and extends time periods for receiving unemployment benefits under state and federal pandemic programs.
    • Federal Pandemic Unemployment Compensation (FPUC) program will provide a supplement of $300 a week to all state and federal unemployment benefits recipients from 12/26/20 until 3/14/21.Because the legislation was not signed until 12/27/20, recipients may experience a one-week gap in benefits.
    • Pandemic Unemployment Assistance (PUA) is extended until 3/14/21, and recipients getting benefits as of that date may continue to do so through 4/5/21; maximum number of weeks of PUA benefits is increased from 39 to 50.
    • Pandemic Emergency Unemployment Compensation (PEUC) program is extended until 3/14/21, and recipients getting benefits as of that date may continue to do so through 4/5/21; maximum number of weeks of PEUC benefits is increased from 13 to 24.
    • States must develop methods to address situations in which unemployment compensation recipients refuse to accept offers of suitable work without good cause, including a method for employers to notify the state when an individual refuses employment.
  • Employee Retention Credit extended, and eligibility expanded: extends Employee Retention Tax Credit under the CARES Act through 6/30/21.
    • Tax credit rate is increased from 50% to 70% of qualified wages, and the limit on per-employee creditable wages is increased from $10,000 per year to $10,000 per quarter.
    • Eligible criteria are expanded to include employers experiencing a 20% (vs. 50%) reduction in year-over-year gross receipts and employers receiving PPP loans.
  • Payroll tax credits for FFCRA leaves extended: guarantees that employers who continue to provide paid sick and family leaves in accordance with prior FFCRA requirements will continue to receive payroll tax credits through 3/31/21. Tax credits apply as if the corresponding employer mandates were extended through 3/31/21.Note that employers are no longer required to provide FFCRA paid leaves, but the continuing tax credits provide an incentive for them to do so.
    • Employers who want to take advantage of these tax credits must follow the FFCRA leave requirements set forth in the original Act.  See our prior blogs on this issue and consult with experienced HR and legal advisors to ensure FFCRA compliance and receipt of the tax credits.
  • Extension of deferred payroll taxes: extends the repayment deadline until 12/31/21 for employers who deferred withholding of employees’ share of social security taxes. Penalties and interest on deferred unpaid tax liability will not begin to accrue until 1/1/22.
  • Extension of time for distribution of CARES Act funds: extends for one year, or until 12/31/21, the time for states and local governments to distribute Coronavirus Relief Funds previously allocated under the CARES Act.
  • Relief for transportation industry: provides funds to support transit industry including airlines, airline contractors, airports, state departments of transportation, Amtrak, and the motorcoach, school bus and ferry industries. In order to receive funds, airlines must recall involuntarily furloughed employees, provide backpay to returning employees, and guarantee minimum air transportation service.
  • COVID-19 vaccines, testing, tracing, and mitigation efforts: provides dedicated funds to procure and distribute vaccines and direct financial aid to states for testing, tracing, and COVID-19 mitigation programs, including grants designated for underserved communities; provides additional funds to support mental health, health care providers, COVID-19 research, and the Indian Health Service.
  • Emergency rental assistance: provides $25 billion for a federal emergency rental assistance program to be administered by state and local governments. Funds will be used to help eligible families struggling to pay rent, utilities, and other housing-related expenses. The CDC’s previous eviction moratorium is extended through 1/31/2021.
  • Broadband and telehealth: provides funds to increase broadband access for low-income families, tribal communities, and rural communities, and appropriates additional funding for telehealth programs.

Please note that this is not an exhaustive list of all provisions included in the Emergency Relief Bill. We encourage you to consult with your business and tax advisors about the Emergency Relief Bill and its impact on your organization and employees.

For additional and information and discussion of FFCRA and PPP loans, please see Lake Effect’s prior blogs on those topics. We will continue to closely monitor all developments in this area and provide you with important updates.

Lake Effect is here to answer your questions about federal and state pandemic relief packages affecting 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.

Lake Effect HR & Law is in business to maximize each client’s workplace potential with a commitment to kindness, true partnership, and exceptional service.

EEOC Updates COVID-19 Guidance to Address Vaccinations

On December 16, 2020, the EEOC updated its What You Should Know About Covid-19 and the ADA, the Rehabilitation Act, and Other EEO Laws to address COVID-19 vaccinations. The update confirms that employers may require approved COVID-19 vaccinations when they are available, but they must do so in compliance with EEO laws. Given the uncertain landscape created by the COVID-19 pandemic, the new guidance also specifies that EEO laws will not prevent employers from following applicable guidelines from the CDC or other federal, state, and local public health authorities.

Key take-aways from the EEOC’s updated guidance include the following:

  • A COVID-19 vaccination is not a “medical examination,” nor does it implicate Title II of the Genetic Information Nondiscrimination Act (GINA). (K.1, K.8) The administration of an FDA approved or authorized COVID-19 vaccine by an employer or a third-party contractor does not constitute a “medical examination” for purposes of the ADA. Administering the vaccine likewise does not implicate GINA because it does not involve the use, acquisition, or disclosure of “genetic information” under the statute.
  • Pre-vaccination medical screening questions may be “disability-related” inquiries under the ADA and could implicate GINA. (K.2, K.9) Pre-vaccination screening questions recommended by the CDC are likely to elicit information about a disability. Therefore, if an employer requires employees to receive vaccinations and administers them itself (or contracts directly with a third party to do so), it must show that pre-screening questions are “job-related and consistent with business necessity.” If an employer is administering vaccines itself, pre-vaccination questions that address or elicit genetic information could also implicate GINA.
  • Employers can provide COVID-19 vaccinations (including pre-screening questions) without meeting the ADA “job related/business necessity” standard or implicating GINA under certain circumstances. (K.2) Employers can provide vaccinations while avoiding the legal challenges involved in pre-vaccination screening questions in at least two ways:
    1. the employer can offer vaccinations to employees on a voluntary basis (where answering pre-screening questions is also voluntary, and questions do not seek genetic information); or
    2. the employer can arrange to have vaccinations administered by a third party with whom it does not have a direct contract (i.e., a pharmacy or other outside health care provider).
  • Rather than administer COVID-19 vaccinations, employers can simply recommend employees get the vaccine and then request or require proof that an employee received a COVID-19 vaccination. (K.3) An employer who requests or requires proof of a COVID-19 vaccination is not likely to elicit information about a disability, and the request therefore is not a prohibited “disability-related” inquiry under the ADA. However, the employer should avoid any follow-up questions and caution employees against providing any medical information beyond proof of vaccination.
  • Employers should assess whether an employee with a disability who cannot take a required COVID-19 vaccine poses a direct threat at the worksite. (K.5, K.7) If an employee cannot receive a required COVID-19 vaccine due to a disability, the employer must assess whether that unvaccinated employee poses a “direct threat” at the worksite under the ADA. That assessment must consider four factors:
    1. the duration of the risk;
    2. the nature and severity of the potential harm;
    3. the likelihood that the potential harm will occur; and
    4. the imminence of the potential harm.
  • If an unvaccinated employee with a disability poses a direct threat, the employer must then explore whether reasonable accommodations could eliminate or reduce that threat. (K.5) Employers can rely on CDC recommendations and OSHA guidance to assess potential accommodations. If the direct threat cannot be reduced to an acceptable level, the employer can prohibit the employee from physically entering the worksite. However, the employer may not automatically terminate that employee. Rather, the employer should consider remote work or other off-site arrangements for the unvaccinated employee.
  • Employers must try to accommodate employees who cannot take a required COVID-19 vaccine because of a sincerely held religious belief. (K.6, K.7) If an employer learns that an employee’s religious beliefs prevent them from taking a required COVID-19 vaccine, it must attempt to accommodate that employee if it can do so without undue hardship. If there is no reasonable accommodation possible, the employer may exclude the unvaccinated employee from the worksite. Again, however, this does not mean that the employer may automatically terminate that employee. Rather, the employer should explore other work arrangements and the implications of other federal, state and local EEO laws.

Based upon current EEOC guidance, employers in most industries can alleviate administrative burdens, minimize legal exposure, and best achieve a vaccinated workforce by strongly recommending that employees obtain a COVID-19 vaccine or by providing vaccinations administered by an unrelated third-party healthcare provider. Employers can also lawfully request or require proof of vaccination without collecting any other private health information about their employees.

For additional and information and discussion of COVID-19 vaccinations and what they mean for employers, please see Lake Effect’s prior blog on vaccines.  We will continue to closely monitor all developments in this area and provide you with important updates.

COVID-19 vaccines on the horizon: What does it mean for employers?

On December 10, 2020, a Food and Drug Administration (FDA) advisory committee will meet to review Pfizer’s COVID-19 vaccine and recommend whether to authorize its emergency use in the United States. Moderna is also seeking FDA Emergency Use Authorization (EUA) for its COVID-19 vaccine, and dozens of other pharmaceutical companies are in the process of developing and seeking approval for vaccines. As the country awaits word on FDA authorizations, governmental bodies and other organizations are preparing for the complexities involved in distributing a COVID-19 vaccine and prioritizing who will receive the first doses.

No doubt, many employers welcome the prospect of a safe and effective COVID-19 vaccine in hopes that remote employees can return to the workplace and safely resume serving clients, customers, and partners. However, this scenario assumes that most employees will get a COVID-19 vaccine when it becomes available. It also raises a difficult question: Can an employer require employees to get a COVID-19 vaccine as a condition of continued employment?

Current FDA guidance:
Federal and state authorities have not directly answered this question. A member of the FDA advisory panel recently stated that vaccines authorized under the FDA’s EUA (as opposed to through the normal approval process) cannot be mandated. This is consistent with 2017 FDA guidance stating that recipients of EUA products must be informed that they have the option to accept or refuse the product and what the consequences of refusal may be. However, there is some dispute as to whether the FDA’s prior position on this issue would control if the Secretary of Health and Human Services adopts a contrary position as to EUA COVID-19 vaccines.

Current EEOC guidance:
Even if initially authorized under an EUA, COVID-19 vaccines will likely be approved through the FDA’s normal approval process in the near future. Employers will then face the same question: can they require employee vaccinations? Current EEOC guidance on Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, updated in March 2020, considers the issue in the context of the influenza vaccine (specifically recognizing that there was no vaccine for COVID-19 at that time). In the case of the influenza vaccine, the EEOC guidance states that “employers should consider simply encouraging employees to get the [vaccine] rather than requiring them to take it.”

Required accommodations:
However, the EEOC guidance also suggests that a mandatory vaccination requirement (influenza, COVID-19, or otherwise) for all employees is permissible as long as employers make exceptions in two instances:

  1. to provide a reasonable accommodation to an employee with an ADA-covered disability that prevents them from taking a vaccine; and
  2. to provide a reasonable accommodation to an employee with a sincerely held religious belief, practice, or observance that prevents them from taking the vaccine, as required under Title VII.

Presumably, reasonable accommodations in lieu of a mandatory COVID-19 vaccine could include permitting telework, increased use of PPE for the employee and co-workers, modification of job duties (i.e., removing public interactions), or transfer to a different office space. In any case, providing an employee accommodation must not cause an undue hardship to the employer. Because COVID-19 is so easily transmitted, and because the EEOC recognizes it as a pandemic and a “direct threat” to employee safety under the ADA (as does OSHA), employers might be granted greater latitude in difficult accommodation cases.

Other considerations:

Although a mandatory COVID-19 vaccination policy may be permissible under current law, this should not end the inquiry for employers seeking to maximize their workforce potential during these challenging times. Beyond its legality, an employer should determine whether implementing a mandatory vaccination policy is necessary or even advisable based upon the nature, needs, and unique culture of its organization. Relevant considerations may include:

  • The frequency and duration of employee interactions with vulnerable populations and/or members of the general public (how critical are employee inoculations to the survival and success of the business?)
  • Cost(s) associated with a mandatory employee vaccination policy/program (time, expense, goodwill of the public and employees)
  • The impact of existing policies, collective bargaining agreements, or past practices on the introduction of a mandatory vaccination policy
  • The potential impact of a mandatory vaccination policy on workplace injury and safety claims
  • The logistics required to administer a mandatory vaccination policy/program on or off-site (including necessary forms, a clear process for requesting accommodations, and protocols for retaining confidential vaccination information; staggering vaccinations may also be required as potential side-effects could render employees unable to work for several days)
  • The availability, cost, and efficacy of other mitigation measures used to prevent the spread of COVID-19 (including an assessment of the measures used to date)
  • Alternative ways to encourage and incentivize employees to voluntarily get the COVID-19 vaccine (i.e., rewarding employees who get the vaccine with added benefits under a wellness program)

Employers should also consider conducting surveys to gather employee feedback before formulating a COVID-19 vaccination policy. Some employees may have specific safety concerns about the FDA’s approval process for new COVID-19 vaccines. Other employees may be skeptical about the medical community or generally concerned about vaccines based upon historical events or personal experiences. Inviting employees to express opinions and concerns can build trust and enhance employee morale. It can also inform an employer’s decision-making and communication strategy as it prepares to welcome more employees back to the workplace, regardless of whether or not an employer adopts any COVID-19 vaccination policy. If an employer decides to proceed with a mandatory vaccine policy, communicating with employees and other stakeholders about the underlying rationale and implementation would be a critical next step.

Stay tuned:
Given the current legal landscape, employers can begin planning the most effective ways to protect their employees and the general public when a COVID-19 vaccine becomes widely available. However, it is entirely possible that we will see new guidance on mandatory vaccinations from federal and/or state authorities after the FDA completes its authorization process.

Lake Effect will continue to closely monitor all developments in this area and provide you with important updates.

Lake Effect is here to answer your questions about protecting your workforce and business consistent with state and federal law. We continue to monitor important legal and HR developments, including 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.

Wisconsin Judge Reinstates Emergency Order Restricting Indoor Gatherings

Update 11/06/2020

The Governor’s Emergency Order #3, which limited indoor gatherings throughout Wisconsin, expired on November 6, 2020. On the same day, the Wisconsin Supreme Court ruled that a lower court should have issued an injunction blocking enforcement of the Emergency Order.

Update 10/26/2020

The statewide indoor capacity restrictions in Emergency Order #3 are not enforceable, at least for now. On October 23, 2020, a Wisconsin court of appeals reinstated a temporary injunction blocking enforcement of the statewide restrictions. The court of appeals decision follows conflicting rulings from two district courts on whether Emergency Order #3 should be enforced pending the outcome of the lawsuits filed against Governor Evers’ administration.

This is a constantly evolving issue. Employers should ensure they are following the current state and local public health restrictions applicable to their organization. Summaries of the public health orders can be found here.


10/20/2020

On October 19, 2020, Barron County Circuit Judge James C. Babler reinstated Emergency Order #3, which limits indoor gatherings throughout Wisconsin to no more than 25% of the total occupancy limit for the room or building. DHS Secretary Andrea Palm’s Emergency Order #3, effective from October 8 until November 6, 2020, exempts schools, polling locations, political rallies, churches, and some businesses, such as grocery stores. On October 14, 2020, a Sawyer County district court had temporarily blocked the Order in response to a lawsuit from state Tavern League members, who argued that Secretary Palm did not have authority to pass the statewide limitations.

Immediately following Judge Babler’s decision to uphold the statewide restrictions, Governor Evers issued a press release stating, “This critically important ruling will help us prevent the spread of this virus by restoring limits on public gatherings. This crisis is urgent.” See Lake Effect’s prior blog on Emergency Order #3.
As a reminder, employers must comply with any local public health orders such as those in Dane County that impose stricter requirements than those set forth in Emergency Order #3. See Lake Effect’s summary of local health orders.

The Lake Effect team will continue to monitor important COVID-related updates such as these from federal, state, and local authorities. Please keep watching for blogs and emails from us for important legal updates and HR best practices. Contact us at info@le-hrlaw.com or 1-844-333-5253.

Review Employee Voting Rights As Elections Near

As we near the end of October, federal, state, and local elections are right around the corner. It is a good time for employers to review relevant policies and legal obligations towards employees who seek time off to vote or otherwise participate in the election process.

Under Wisconsin law, an employee who is entitled to vote in a public election must be given up to three (3) consecutive hours off work while the polls are open. An employee who plans to take time off to vote must notify their employer before election day, and the employer may designate the time of day for the absence (for example, at the start or end of a shift or work day). An employer need not pay an employee for time off to vote, but it may not penalize the employee in any way for taking that time off. Wis. Stat. §6.76.

An employee who wishes to participate in the election process as a registered poll worker has no similar right to time off work under Wisconsin law. However, employers may permit employees to take available paid or unpaid time off, such as vacation, paid time off, or community service time, for that purpose. Employers should take steps to ensure consistent treatment of all employees who request time off for election-related reasons.

In addition, employers should review any applicable collective bargaining agreements, handbooks, and internal policies that may provide greater rights than those set forth in Wisconsin’s voting rights statute.

Finally, employers should keep in mind that other states may impose different or additional requirements with regards to employee voting. A number of states, such as Illinois, require employers to provide paid time off for employees to vote. Other states have more stringent notice provisions. For example, New York requires employers to post a notice within 10 days of each election informing employees of their rights regarding voting time.

If you have questions about election-related issues as they impact your workforce inside or outside of Wisconsin, the team at Lake Effect HR & Law is happy to assist. Lake Effect continues to monitor important legal and HR developments, as well as COVID-related updates from federal, state, and local authorities. Please keep watching for blogs and emails from us for important legal updates and HR best practices. Contact us at info@le-hrlaw.com or 1-844-333-5253.

DOL Announces Proposed Rule on Independent Contractor Status under the FLSA

On September 22, 2020, the US Department of Labor proposed a new rule to clarify whether a worker will be classified as an independent contractor or an employee under the Fair Labor Standards Act (“FLSA”). The proposed rule will be available for review and public comments for 30 days after it is published in the Federal Register.

The proposed rule adopts an “economic reality” test to determine a worker’s status. That test focuses on whether a worker is economically dependent upon an employer for work or is truly in business for themselves . Economic dependence is the ultimate inquiry. In applying this test, the two most important factors are:

  • Who exercises substantial control over key aspects of work performance? Where the worker sets their own schedule, selects projects, and retains the ability to work for an employer’s competitors, this factor will weigh in favor of independent contractor status. In contrast, where the employer sets the schedule, controls the workload, and requires the worker to perform work exclusively for that employer, this factor will weigh in favor of employee status.
  • Does the worker have an opportunity for profit or loss (i.e. an ability to affect their earnings by the exercise of their own management and initiative)? If the worker can earn more or lose profits based upon their own managerial skills or business acumen, for example by hiring helpers or choosing particular equipment or materials, this factor will weigh in favor of independent contract status. If the worker is unable to affect their earnings or is only able to do so by working more hours or working more efficiently, this factor will weigh in favor of employee status.

Other factors to be considered in assessing independent contractor vs. employee status under the FLSA include the amount of skill required for the work, the permanence of the working relationship between the parties, and whether the work performed by the individual is a component of the employer’s integrated production process for a good or service.

The DOL’s proposed rule emphasizes that the parties’ actual practice is key to the assessment of independent contractor status. What the parties state in a contract or what may be theoretically possible under a work arrangement is of little relevance if it differs from the reality of their working relationship.

Employers should keep in mind that many states have adopted their own tests for independent contractor status under their respective state wage and hour laws; these tests can differ from state-to-state. The tests may also vary based upon the state law issue being addressed, i.e. unemployment compensation eligibility, workers’ compensation coverage, employment tax liability, etc.

The issue of independent contractor versus employee status continues to challenge employers across all sectors throughout the U.S. We will continue to closely monitor the DOL’s proposed rule and other state-based developments in this area. In the meantime, it might be a good time to review your independent contractor agreements and work relationships within your organization. Your partners at Lake Effect HR & Law can help you ensure compliance while retaining the flexible and dynamic workforce that your organization needs. 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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