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.

Dane County Face Covering Emergency Order #7

Public Health Madison & Dane County has issued Face Covering Emergency Order #7. The new order is effective February 1, 2022, and remains in place until March 1, 2022. The only change from the previous Order #6 (see Lake Effect’s summary of the previous orders here) is the extension of time.

Lake Effect is here to answer your questions about how local and state public health orders apply to 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.

OSHA Formally Withdraws COVID-19 Vaccination and Testing ETS

On the heels of the US Supreme Court’s recent ruling blocking enforcement of its COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), OSHA issued a statement formally withdrawing the ETS as an enforceable temporary standard effective January 26, 2022. OSHA stated that it will continue to pursue the ETS as a proposed rule and focus on finalizing a permanent COVID-19 Healthcare Standard. OSHA continues to encourage COVID-19 vaccination of workers to minimize workplace health risks posed by the virus.

For a complete discussion and history of this issue, please see Lake Effect’s prior blogs on the ETS and the Supreme Court's recent decision.

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.

Supreme Court Decision on Vaccine Mandate

Supreme Court: OSHA Exceeded Its Authority by Requiring Large Employers to Adopt Mandatory Vaccination Policies, But Healthcare Providers Can Require Employee Vaccinations

On January, 13, 2022, The US Supreme Court issued its much anticipated decision on two Biden Administration initiatives aimed at increasing COVID-19 vaccination rates across the nation: (1) OSHA’s Emergency Temporary Standard, which requires large employers (100+ employees) to adopt mandatory vaccination policies; and (2) the Center for Medicare and Medicaid Services’ (CMS’) Interim Final Rule, which requires certified healthcare entities to mandate employee vaccinations. For a detailed discussion of OSHA’s ETS for large employees, please see Lake Effect's prior blog on this topic.

As to the first, the Supreme Court reinstated a nationwide stay of OSHA’s ETS, finding that parties challenging OSHA’s vaccine mandate will likely prevail on the merits of the case. The Supreme Court explained that OSHA is tasked with regulating workplace health and safety. However, allowing OSHA to regulate the hazards of Americans’ daily lives would significantly expand its regulatory authority in a manner not authorized or intended by Congress. Under the Supreme Court’s ruling, the case will be sent back to the Sixth Circuit for a final decision on the merits, and OSHA cannot enforce the ETS in the interim. Given the Supreme Court’s decision, however, it is highly unlikely that the Sixth Circuit will uphold the ETS.

As to the second initiative, the Supreme Court upheld CMS’ ability to enforce its vaccination mandate for certified health care providers. The Court found that the US Secretary of Health and Human Services is authorized to impose detailed conditions on the receipt of Medicare and Medicaid funds, and those conditions are often aimed at preventing and controlling the transmission of communicable diseases. The Court concluded that requiring healthcare providers to mandate employee vaccinations as one such condition is well within the authority of CMS.

What Should Employers Do Now?
At this time, large employers need not implement OSHA’s detailed vaccination and testing requirements, and it is highly unlikely that the ETS will be upheld at all. However, employers of any size may lawfully implement their own vaccination and testing policies, as long as accommodations for eligible employees are granted in accordance with Title VII (religion) and the ADA (disability).

CMS can enforce its Interim Rule as to covered healthcare provider employers nationwide. Although further litigation on the Rule is likely, covered healthcare providers should prepare to meet upcoming compliance deadlines in January and February 2022.

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.

CDC Shortens Recommended COVID-19 Isolation and Quarantine Periods

On December 27, 2021, the US Centers for Disease Control and Prevention (CDC) revised recommendations for people who test positive for or are exposed to COVID-19. The updated guidelines reflect recent evidence that transmission of the now-prevalent Omicron variant typically occurs 1-2 days prior to the onset of symptoms and 2-3 days after. The recommendations are also aimed at returning people to work as quickly and safely as possible in the face of nationwide staffing shortages. The CDC’s updated recommendations provide:

After positive COVID-19 test (regardless of vaccination status) Isolate at home for 5 days

If you have no symptoms or symptoms have fully resolved after 5 days, you may leave your home but continue to mask for 5 more days.

After COVID-19 exposure for people who are not vaccinated or who are more than 6 months out from their second dose of vaccine and not yet boosted Quarantine for 5 days and then mask for 5 more days

If quarantine is not feasible, mask for 10 days.

Note: the day of exposure is considered day zero (0)

After COVID-19 exposure for people who are boosted or completed the primary Pfizer or Moderna vaccine series within the last 6 months, or who completed the J&J vaccine series within the last two months Mask for 10 days

Note: the day of exposure is considered day zero (0)

After COVID-19 exposure (regardless of vaccination status) If possible, take a COVID-19 test on day 5 following exposure.

If you develop symptoms at any time during the quarantine or masking period, get a test and begin isolation at home.

Note: the day of exposure is considered day zero (0)

The new CDC recommendations should provide some relief to the many US employers dealing with staffing challenges related to COVID-19.

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.

Update on OSHA’s Vaccination and Testing Emergency Temporary Standard

On December 17, 2021, the U.S. Court of Appeals for the Sixth Circuit lifted the stay placed by the Fifth Circuit and cleared the way for OSHA’s Emergency Temporary Standard (ETS) to proceed.  A coalition of trade groups quickly appealed the decision to the U.S. Supreme Court for final determination.

Almost immediately, OSHA updated its site as follows:

Litigation Update
OSHA is gratified the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard. OSHA can now once again implement this vital workplace health standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace.

To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.

Per OSHA’s statement, employers will now have until January 10, 2022 to develop compliant policies and until February 9, 2022 to begin testing programs. Additionally, OSHA noted that no enforcement will start before January 10, 2022.

Lake Effect recommends that all covered employers (defined as those with at least 100 employees firm or corporate-wide at any time the ETS is in effect) proceed as if the ETS will be implemented, but recognize there may be further delays pending a decision from the U.S. Supreme Court.   Please see Lake Effect’s prior blogs on OSHA’s ETS for more complete information about the provisions of the standard.

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.

EEOC Clarifies When COVID-19 Condition May Be a “Disability” Under the ADA

The EEOC updated its COVID-19 Technical Assistance Guidance on December 14, 2021. The Guidance’s new Subpart N discusses when COVID-19 or a post-COVID condition may qualify as an ADA covered “disability” triggering the statute’s anti-discrimination and reasonable accommodation requirements. Key points include:

  • Not every COVID-19 related impairment constitutes a disability under the ADA, and the determination must be made on a case-by-case basis.
  • Like a person with any other medical condition, a person with a COVID-19 condition may have a “disability” under the ADA in one of three ways:
    1. The person has an “actual” disability: a physical or mental impairment that substantially limits a major life activity. This requires an individualized assessment of the effects of COVID-19 on the specific individual.
    2. The person has a “record of” a disability: a history or record of an actual disability; or
    3. The person is “regarded as” having a disability: the person is subject to an adverse action because of an actual or perceived impairment, unless the impairment is both transitory and minor.
  • Someone with COVID-19 who is asymptomatic or who has mild cold or flu-like symptoms that resolve in a matter of weeks is not substantially limited in a major life activity and thus does not have an “actual” disability under the ADA.
  • An individual with COVID-19 conditions that last or are expected to last for several months, such as ongoing neurological issues, breathing difficulties, heart palpitations, or gastrointestinal pains associated with “long COVID,” may be substantially limited in a major life activity and have an “actual” disability under the ADA. This requires an individualized assessment.
  • A person who has or had COVID-19 can have “record of” a disability if they have a history of symptoms that substantially limited one or more major life activities. Again, this requires an individualized assessment.
  • A person may be “regarded as” an individual with a disability under the ADA if they are subjected to an adverse employment action because they had non-minor symptoms of COVID-19 or minor symptoms that were expected to last more than six months.
  • Regardless of whether a person’s initial case of COVID-19 is itself an ADA covered “disability,” they may develop related health complications that qualify as disabilities under the ADA, such as heart inflammation, reduced brain function, or diabetes.
  • A person must establish they have “actual” or “record of” an ADA covered disability to be eligible for a reasonable accommodation from their employer, and the employer may ask for supporting medical documentation before granting any accommodation request.
  • Note that the EEOC’s COVID-19 Technical Assistance Guidance Subpart D confirms that an employer is not required to accommodate an employee without an ADA covered disability based on the disability-related needs of a family member or other person with whom they are associated.

The EEOC Technical Assistance guide includes additional details and examples. Determinations about whether an individual with a COVID-19 related condition has an ADA-covered disability or is entitled to a reasonable accommodation are fact-specific and must be made on a case-by-case basis. Contact your partners at Lake Effect for help with these complex situations.

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.

The Uncertain Fate of OSHA’s ETS Mandating Employer Vaccination Policies

What is the status of OSHA’s ETS? As Lake Effect previously reported, OSHA issued an Emergency Temporary Standard earlier this month requiring employers with 100 or more employees to implement mandatory vaccination or testing/masking policies. Read our prior blog for a full discussion of OSHA’s guidelines and requirements. In response to the ETS, employers across the country began to prepare policies in advance of the initial December deadlines.

Almost immediately, states, employers, and other groups across the country filed lawsuits challenging OSHA’s authority to issue the ETS. On November 5, 2021, a three-judge panel of the U.S. Court of Appeals for the 5th Circuit temporarily halted the mandate. On November 12, 2021, the full 5th Circuit Court of Appeals issued an order barring OSHA from implementing and enforcing the ETS pending further court proceedings. In response, OSHA announced that it had “suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.” In the latest legal development, the Judicial Panel of Multidistrict Litigation consolidated at least 34 lawsuits across the country challenging the ETS (including the 5th Circuit case) before the 6th Circuit Court of Appeals based in Cincinnati. A three-judge panel from the 6th Circuit will be randomly assigned to hear all pending legal challenges to OSHA’s ETS.

What does this mean for employers? For now, OSHA will cease implementation and enforcement of the ETS, and prior December and January deadlines are no longer in effect pending further court action. However, this does not necessarily mean employers should delay or stop planning for vaccination policies. Keep in mind:

  • The Biden Administration and OSHA are confident in OSHA’s authority to issue workplace safety-related regulations, and they will vigorously defend the enforceability of the ETS.
  • Despite the 5th Circuit’s initial stay, the 6th Circuit could reject legal challenges and uphold OSHA’s authority to issue the ETS.
  • Regardless of the outcome of legal challenges to the ETS, employers of any size have the discretion to implement mandatory vaccination and/or testing/masking policies in their workplaces, as long as they comply with Title VII and ADA accommodation requirements.
  • Employers who are federal contractors or health care providers must comply with vaccination mandates under the Federal Contractor Mandate and CMS Medicate Omnibus Staff Vaccine Mandate Interim Final Rule. These mandates are unaffected by the current ETS litigation.

On A Related Note, You May Have Collective Bargaining Obligations. On November 10, 2021 (prior to consolidation of country-wide lawsuits challenging the ETS) the National Labor Relations Board (NLRB) Acting Associate General Counsel issued a memorandum outlining employers’ obligations to bargain with unions about issues related to the ETS. She confirmed that covered employers must bargain with unions about whether to implement a vaccine mandate or implement a vaccine and testing/masking policy. In addition, employers must bargain about the effects of the ETS policy on employees, including whether to provide leave to employees who test positive or how to discipline employees who refuse to comply with an ETS policy. Employers with represented employees should keep these obligations in mind as they consider and implement any vaccination policy.

Contact your partners at Lake Effect for help navigating vaccination issues in the workplace during this uncertain time. We will continue to closely monitor all legal developments relating to the ETS.

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.

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.

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