EEOC Provides Additional Guidance on Religious Objections to Vaccine Mandates

On October 25, 2021, the EEOC updated its COVID-19 Technical Assistance to specifically address religious objections to employer vaccine mandates. The update provides employers with additional guidance regarding their Title VII obligation to accommodate employees who request exceptions to vaccination requirements based upon religious beliefs. Key updates in Section L. Vaccinations – Title VII and Religious Objections to COVID-19 Vaccine Mandates include the following:

  • Employees must tell their employer if they are requesting an exception to a COVID-19 vaccination requirement based upon a “sincerely held religious belief.” Employers should inform employees about proper procedures for requesting such an exception, and employees need not use any “magic words” to express the request.
  • An employer should normally assume a request for religious accommodation is based upon a sincerely held religious belief. However, if there is an objective basis for questioning the religious nature or sincerity of an employee’s belief, an employer may seek additional information. An employee who fails to cooperate with a reasonable request for additional information jeopardizes a later claim that they were improperly denied an accommodation.
  • Title VII protects nontraditional religious beliefs, but it does not protect social, political, or economic views or personal preferences. Objections to COVID-19 vaccination requirements that are based on these views or nonreligious concerns about the possible effects of the vaccine do not qualify as “religious beliefs” under Title VII.
  • An employer may consider factors bearing on an employee’s credibility when assessing the sincerity of the employee’s stated religious belief, including the consistency of the employee’s prior actions, the timing of a request, etc. The employer may also ask for an explanation of how the employee’s religious belief conflicts with the employer’s vaccination requirement.
  • If an employer shows it is unable to reasonably accommodate an employee’s religious beliefs without suffering “undue hardship,” it is not obligated to provide the accommodation under Title VII. Requiring the employer to bear more than a “de minimis” cost constitutes an undue hardship. Such costs can include direct monetary costs, as well as an indirect burden on the employer’s business, including the risk of spreading COVID-19 to other employees or members of the public. Undue hardship must be assessed based upon specific facts of each situation.
  • An employer who grants some employees a religious accommodation from a vaccine requirement for religious reasons is not required to grant the same accommodation to all employees. The determination is made on a case-by-case basis. Furthermore, an employer need not grant the religious accommodation preferred by an employee if there is another that would resolve the conflict between the vaccination requirement and the religious belief.

If an exception is granted, employers should put in place measures to protect the unvaccinated employee, other employees, and the public, as noted in Section K.6 of the EEOC guidance.  Possible accommodations include wearing of face masks, frequent COVID-19 testing, change in work location or duties.

Employers who receive employee requests for exceptions to vaccination requirements based upon religious beliefs should work closely with HR and legal counsel to assess their accommodation obligations under Title VII.

Lake Effect continues to monitor important legal and HR developments, including 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.

Provisions of Final Tip Pool Rule Effective November 23, 2021

The U.S. Department of Labor’s latest final tip pool rule provisions will take effect on November 23, 2021. For further discussion on other provisions of the final rule that were implemented in April 2021, please see Lake Effect’s prior blog on this topic.

The following provisions of the final tip pool rule will take effect on November 23, 2021:

  • Managers and supervisors may keep tips they receive for services provided “solely” by the manager or supervisor and “directly” to customers. This clarification to the traditional prohibition on managers and supervisors receiving tips in a tip pool or tip sharing arrangement recognizes the reality that managers and supervisors are often called upon to perform tipped duties in the course of their workday. This means, for example, when a bar manager is working as a bartender to fill in for an absent bartender or during a slow shift, the bar manager may keep tips received directly from patrons at the bar. Similarly, when a salon manager receives tips from a client for a haircut done by the salon manager, the salon manager may keep the tips.
  • Managers and supervisors may contribute some of their tips received from their “sole” and “direct” work into mandatory tip pools or sharing, but they may not receive any tips from a tip pooling or tip sharing arrangement. Further, an employer may require (or may allow) managers and supervisors to contribute part of their “sole” and “direct” tips into tip pooling or sharing arrangements, but, again, managers and supervisors may not keep or receive employees’ tips, or other managers’ and supervisors’ tips, in any arrangement.
  • Employers may face fines up to $1,100 for each instance that the Department of Labor finds an employer took an employee’s tips, regardless of whether the violation was repeated or willful. This now encompasses employer behavior that is in “reckless disregard” of the FLSA regulations and situations when an employer should have explored if its behavior was compliant but failed to do so.

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.

Dane County Face Covering Emergency Order #2

Public Health Madison & Dane County (PHMDC) has issued Face Covering Emergency Order #2, effective September 10, 2021 through October 8, 2021.

The new order is substantially the same as the previous order issued last month. The only changes are two exceptions have been added to the situations in which an individual may remove their face covering. Those two additional situations are:

  • While playing a wind instrument that has a cover on it as long as all individuals in the room are spaced six feet apart from one other
  • While presenting or performing a religious, political, media, educational, artistic, cultural, musical, theatrical, or any other type of presentation for an audience as long as
    • everyone at the presentation or performance is fully vaccinated, and
    • the presenters or performers maintain at least six feet from all attendees

All other requirements from the previous order remain in effect, including the requirement that employers develop a policy providing and requiring face masks, and post a sign mandating a face covering indoors.

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.

Updated OSHA Guidance to Continue Workplace Health and Safety Measures

On August 13, 2021, the Occupational Safety and Health Administration (OSHA) updated its guidance for all employers to reflect the CDC’s July 27, 2021 recommendations on masks and testing for fully-vaccinated individuals. As with the prior guidance on COVID-19, this updated OSHA guidance is not a standard or regulation and creates no new legal obligations. However, the guidance is likely to be relied on to measure employer compliance with OSHA’s “General Duty Clause.” That clause requires employers to provide a workplace free from recognized hazards that cause or are likely to cause death or serious harm.

To reduce the risk of spreading COVID-19 among employees, especially the Delta variant, OSHA recommends that employers:

  • Require all employees, including those who are fully vaccinated, to wear a face covering, or other appropriate PPE, when indoors with other people in areas of substantial or high transmission.
  • Encourage or require all customers, visitors, and guests to wear face coverings when indoors in areas of substantial or high transmission.
  • Adopt policies that require employees to get vaccinated or, if they remain unvaccinated, get regularly tested for COVID-19 plus continue wearing a face covering and physical distancing.
  • Require fully vaccinated employees who have been exposed to COVID-19 to be tested three to five days after exposure and wear a face mask when indoors for 14 days unless they test negative.

The above precautions are in addition to measures included in OSHA’s previous guidance. See Lake Effect’s blog on OSHA’s guidance for employers.

Employers should work closely with legal counsel and HR to implement an updated COVID-19 workplace program consistent with this new OSHA guidance and any applicable local guidance and orders. Lake Effect is here to help you through this process.

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.

Increased Fines for Not Posting Employment Posters

The federal government recently increased the fines employers may face for violating federal employment law posting requirements. Going forward, the potential posting fines are:

  • Family and Medical Leave Act – $178
  • Job Safety and Health: It’s the Law – $13,653
  • Employee Polygraph Protection Act – $21,663
  • EEO is the Law – $576

Employers should also be aware that each state has its own poster requirements, most of which impose fees for failing to comply. It is important for employers to maintain an effective strategy for staying informed about the applicable local, state, and federal posting requirements. Contact your partners at Lake Effect with questions about obtaining and updating required employment posters.

Lake Effect is here to answer your questions about your posting requirements and other employment law and HR compliance matters. 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.

HR Reporting Updates

There have been two important employer reporting updates for Human Resource practitioners.

First, the Equal Employment Opportunity Commission (EEOC) announced an extension of the deadline for submission of 2019 and 2020 EEO-1 Component 1 Data Collection to Monday, August 23, 2021. Please see Lake Effect’s prior blog on EEO-1 reporting requirements for more information.

Second, the Social Security Administration announced that it is discontinuing Employer Correction Request Notices (EDCOR), also known as “Social Security No Match Letters.” Their stated rationale for this change is “to focus on making it a better, easier, more convenient experience for employers to report wages electronically.” Please see Lake Effect’s prior blog on Social Security No Match Letters for more information.

Lake Effect is here to answer your questions about employer reporting requirements. 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.

President Biden Signs Law Making Juneteenth a Federal Holiday

On June 17, 2021, President Biden signed into law Juneteenth National Independence Day, making June 19 the 12th federal holiday. Juneteenth commemorates the end of slavery in the United States in 1865, almost three years after the Emancipation Proclamation was signed in 1862.

Most federal employees will observe the holiday on Friday, June 18 this year, and many local and state governments have followed suit. While private employers are not required to recognize federal holidays, the passage of the Juneteenth law is an opportunity to review your employee handbook leave policies generally and your holiday schedule specifically. Employers have several options for designing a holiday schedule that aligns with their strategic goals, workplace culture, DEI initiatives, and customer or client needs.

Lake Effect is here to answer your questions about your workplace culture, leave policies, and employee handbooks. 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.

Long Awaited OSHA Guidance to Continue Workplace Health and Safety Measures

On June 10, 2021, the Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) with a very narrow scope, focused on the healthcare industry. Fortunately, OSHA also updated its January 29, 2021 guidance for all employers to reflect the increasing prevalence of vaccinations and the lifting of mask orders around the country. (See our prior blog on the January guidance here.) This new guidance provides a helpful reminder for employers to remain steadfast in their many COVID-related health and safety efforts.

As with the January update, this new guidance is not a standard or regulation, and creates no new legal obligations. Nonetheless, it will likely be one yardstick used to measure compliance with OSHA’s “General Duty Clause,” which requires employers to provide workers with a workplace free from recognized hazards that cause or are likely to cause death or serious harm.

The new guidance specifies ways to protect unvaccinated and other at-risk employees, mitigate the spread of COVID, and encourage vaccinations, including the following:

  • Encourage employees to get vaccinated (See Lake Effect’s prior blog on this issue)
  • Provide employees with paid time off to get vaccinated (See Lake Effect’s prior blog on EPSL leaves for employees to receive or recover from COVID vaccinations)
  • Require unvaccinated employees (and visitors) who are exposed to or experiencing symptoms of COVID to stay home and seek treatment
  • Maintain workplace safety measures for unvaccinated and at-risk workers including physical distancing, physical barriers, reduced employee density in spaces, flexible or staggered work schedules, alternative meeting options, remote work, and the like
  • Provide proper masks to unvaccinated and at-risk workers when working indoors. OSHA noted that unvaccinated persons who are not otherwise at-risk do not need to wear a mask outdoors, unless otherwise required by federal, state, or local requirements
  • Educate and train employees on COVID preventive measures and practices
  • Encourage unvaccinated visitors, clients, and guests to wear masks when onsite
  • Maintain ventilation systems to minimize transmission and spread of COVID
  • Follow CDC cleaning and disinfection recommendations
  • Implement a process for employees to anonymously express concerns about COVID safety practices and ensure that they are not discriminated or retaliated against in any way
  • Record and report COVID infections and deaths consistent with applicable OSHA requirements (See Lake Effect’s blogs on this issue)

Employers should work closely with legal counsel to understand all requirements and implement a COVID-19 workplace prevention program consistent with this new OSHA guidance and any applicable local guidance and orders. Lake Effect is here to help you through this process and ensure that you are taking all possible steps to provide a workplace free from the recognized hazards created by the COVID.

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

Mask mandates end, but employers have options

With mask orders lifting around the country, many employers are left wondering what to do in their own workplace. In most communities, employers have several options, including the following:

  • Remove all masking requirements in your workplace or place of business
  • Require all employees and visitors to wear masks at all times
  • Allow fully vaccinated employees and visitors to be maskless, but require unvaccinated employees and visitors to wear masks
  • Allow employees and visitors to report their vaccination status using the honor system
  • Require employees and visitors to provide proof of vaccination status, cautioning them to provide only vaccination documentation, not other medical information

After making such decisions, employers should communicate expectations clearly to all staff and visitors. Employers should also be mindful of treating all employees fairly and with kindness and respect regardless of their masking decisions or vaccination status.

Lake Effect is here to answer your questions about preventive measures, vaccinations, and safely reopening your 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.

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

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