Fisher Phillips

It’s hard to keep up with all the recent changes to labor and employment law. While the law always seems to evolve at a rapid pace, there have been an unprecedented number of changes for the past few years—and this past month was no exception.

In fact, there were so many significant developments taking place during the past month that we were once again forced to expand our monthly summary well beyond the typical “Top 10” list. In order to make sure that you stay on top of the latest changes, here is a quick review of the Top 18 stories from last month that all employers need to know about:

1. Employers May Be Able To Scrap Mask Mandates For Fully Vaccinated Workers: A 7-Step Blueprint to Overcome Risks and Hurdles – The May 13 announcement from the CDC that fully vaccinated people no longer need to wear a mask or physically distance in any non-healthcare setting was a welcome relief for all Americans and a hopeful sign that we have turned a significant corner with the COVID-19 pandemic. But the announcement included an important caveat – that the guidance did not overrule federal law, workplace guidance, local business restrictions, or state, local, or other similar regulations. And because the CDC’s announcement offered no specific guidance for employers, many workplaces may feel unsure how to proceed. The good news is that the new rules seem to offer a path forward for those employers that want to proceed to a mask-less workplace – but such a path involves some risks to consider and hurdles to overcome. There’s a seven-step blueprint for employers to get to that point.

2. Employers Now Have 2 Clear Options to Provide Vaccine Incentives Thanks to New EEOC Guidance – The EEOC kicked off the unofficial start of summer with a bang by clearing the way for employers to offer their employees incentives to get the COVID-19 vaccine in new guidance released on the eve of the Memorial Day weekend. The May 28 updates to the agency’s COVID-19 Technical Assistance guidance now provides employers with two clear options, drawing a key distinction based on who administers the shot:

  1. If your employees voluntarily provide documentation confirming they have been vaccinated and got the shot on their own from a pharmacy, public health department, or other health care provider in the community, you can offer them any incentive you’d like with no apparent limitations.
  2. If your organization (or an entity acting on your organization’s behalf) administers the vaccine, you can still offer incentives – but they cannot be so substantial in value as to be considered coercive.

Regardless of which path you travel, there are still hoops to jump through if you want to provide vaccine incentives – providing accommodations, ensuring confidentiality, etc. – but you now have a clear direction to take to encourage your workers towards vaccination. What do you need to know about this critical update?

3. Employers Have 3 Options in Light of OSHA’s Unmasking Announcement – Responding to a huge looming question for employers, the Occupational Safety and Health Administration (OSHA) issued a May 17 announcement referring businesses to the CDC’s new guidance advising that fully vaccinated people no longer need to wear a mask or social distance in non-healthcare settings. But neither OSHA’s May 17 announcement nor the CDC’s May 13 release provide specific direction to employers about whether and how they should proceed when it comes to developing unmasking policies and procedures. In light of the current state of the law, employers have three basic choices when it comes to masking policies for their workers: maintain full masking rules, require vaccinated workers to present proof of inoculation before being allowed to go mask-less, or ask employees to follow an honor system approach. What do you need to know about these three options?

4. FP Flash Survey Reveals That Most Employers Continue to Refrain From Mandating COVID-19 Vaccine But Vast Majority Encouraging It – It appears an overwhelming number of employers are not mandating their employees receive the COVID-19 vaccine – more than four in five – but are instead encouraging their workforce to get inoculated from the virus. That’s according to a survey conducted by Fisher Phillips, with over 600 respondents providing their thoughts between May 14-19. The most recent survey – which follows a similar survey the firm conducted in January 2021– sheds light on the rationale behind these business decisions and reveals some shifting attitudes on this topic over the last few months.

5. White House Wipes Out Trump-Era Gig Economy Rule – After a minor delay in the rulemaking process, the expected just occurred: effective May 6, President Biden’s Department of Labor rescinded the gig economy regulation that would have made it easier to classify workers as independent contractors. We’ve seen this coming for some time now – in early January, in fact, we wrote a Legal Insight about how the future of the Trump-era Department of Labor’s gig economy rule was “uncertain.” What can you expect from this rollback and what does it mean for businesses and workers?

6. States are Opting Out of Federal Unemployment Benefits To Induce Employees Back to Work – Your 10-Step Plan to Fill out Your Workforce – The increase in vaccinations and decrease in the COVID-19 infection rate has led to a rapid reopening of the U.S. economy. But as the country starts to fully reopen and businesses ramp back up, the need to recall or rehire employees — some of whom have been collecting enhanced unemployment benefits — has created a new crisis point: labor shortages. A growing number of states are seeking to combat this crisis by moving to end federally funded pandemic unemployment benefits, including the extension of the number of weeks of available benefits and the extra $300 per week in enhanced unemployment benefits received by most unemployed workers. What do you need to know about this development, and what can you do to try to turn the tide at your own place of business? Here is a 10-step plan to help you attract and retain former employees and new applicants.

7. A New Era in Florida: What Employers Need to Know About Vaccine Passport Ban and Updated Mask Requirements – Declaring that the state is “no longer in a state of emergency,” Florida Governor Ron DeSantis signed a bill on May 3 banning vaccine passports while issuing two executive orders immediately suspending and invalidating local government COVID-19 restrictions, including mask mandates. But the news doesn’t necessarily mean you should rush to ease up on your facemask requirements for workers or visitors, nor impact your decision to mandate vaccines for your workers. Below is a summary of the implications for Florida businesses.

8. Reversal of Fortune for California Employers: State Officials Put Brakes On COVID-19 Workplace Safety Rule Changes – For Now – In an unexpected turn of events, the California Occupational Safety and Health Standards Board announced on May 20 that it will not move to adopt the proposed revisions to the existing Cal/OSHA COVID-19 Emergency Temporary Standard (ETS). Instead, the Deputy Chief of Cal/OSHA has asked that the Standards Board hold off on voting and allow the state safety agency the opportunity to present a new proposal at a future meeting with a targeted effective date of June 15. What does this dramatic and unexpected development mean for California employers?

 9. A Sobering Reality for Craft Breweries: 5-Step Action Plan to Address Workplace Harassment – The brewing industry has been overwhelmed over the past few weeks with numerous accounts of employees claiming harassment, gender discrimination, and toxic work environments. What started as one woman’s account of harassment on her Instagram page quickly turned into an industry-wide assault – and it will now force an awakening among brewery employers. Because just as troubling as the accounts of unprofessional behavior are the widespread reports of company cultures that have permitted systemic and pervasive harassment to continue in the workplace with little to no consequence. Breweries that have been called out publicly may now be forced to answer for years of perceived indifference both in the courtroom and in the court of public opinion. But many breweries don’t know where to start. We are here to help with concrete steps that every brewery can take. This five-step guide helps identify areas where your organization can improve your handling of employee complaints and offers practical solutions that can be implemented immediately. 

10. Social Security Administration Will Discontinue Sending No-Match Letters to Employers – For Now – In recent years, a large number of U.S. employers have received letters from the Social Security Administration advising them that one or more of their employees submitted a Form W-2 with a name that does not match their listed Social Security Number. With a new administration in power, the SSA recently announced that it will no longer issue these so-called “no-match letters” to employers. Instead, the agency said it will focus on making employer corrections easier and educating employees as to the importance of accurate Social Security records – while keeping the door open for further possible action at some point down the road. What do employers need to know about this welcome development?

11. New York Enacts Major Expansion of Workplace Health and Safety Standards to Create COVID-Related Protections – Following an eleventh-hour agreement to make “technical changes” to the version of the bill passed by the New York State legislature, Governor Cuomo signed into law the New York Health and Essential Rights Act – also known as the NY HERO Act– to create additional pandemic-related workplace protections. Drafted in response to the COVID-19 pandemic, the Act amends state law to mandate the development and implementation of health and safety standards targeting the spread of all airborne infectious diseases in the workplace. The majority of obligations will kick in on June 4 – 30 days from the May 5 finalization date – although one section does not take effect until November 1 (180 days later). Here is what New York employers need to know about this new law – especially given that your compliance obligations will be here before you know it. 

12. Immigration Authorities to Suspend Biometrics Requirement for Work Visa Dependents in Effort to Clear Up Backlog – The United States Citizenship and Immigration Services (USCIS) announced through a court filing on May 3 that it will suspend biometrics requirement for several categories of work visa dependent status application, thereby helping to speed up the adjudication of these applications and their associated employment authorization applications. The biometrics process involves a visit to the USCIS field office to provide fingerprints and photograph. The suspension of this requirement started on May 17 and is expected to last until May 17, 2023 and will cover extension and change of status for H-4, L-2, E-1, E-2, and E-3 categories. Both pending cases and new cases will be covered by this suspension. Impacted individuals and their employers may see a welcome relief in shortening the gap of employment authorization caused by the agency’s delay.

13. IRS Addresses Lingering Employer Questions Regarding COBRA Premium Assistance and Corresponding Tax Credits under the American Rescue Plan Act – The American Rescue Plan Act (ARPA) provides for 100% premium assistance to certain qualified beneficiaries for continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) for periods of coverage beginning on or after April 1, 2021 and ending September 30, 2021. Employers have been grappling with a number of items left unanswered by lawmakers and subsequent DOL guidance, including whether premium subsidies apply to dental and vision plans, whether employers can claim tax credits for COBRA payments included in pre-existing severance agreements, whether premium assistance will continue to apply to a spouse’s or dependent’s coverage during extended COBRA coverage due to a second qualifying event like the death of the former employee, and what constitutes an involuntary termination of employment that would make someone an assistance eligible individual (AEI). IRS recently released Notice 2021-31 to help answer many of these lingering questions. What do employers need to know about this May 18 Notice?

14. Massachusetts Enacts Yet Another COVID-19 Paid Leave Obligation for Bay State Employers – Massachusetts Governor Charlie Baker signed legislation on May 28 creating another statewide mandate for employers to provide emergency paid leave related to COVID-19. The COVID-19 Paid Leave obligations outlined in this article will begin 10 days from the governor’s signature, which means you will need to quickly adjust your policies and practices before the June 7 effective date. What do Bay State employers need to know about this latest legal compliance challenge?

15. Ohio Jumps Aboard CDC’s Masking Guidance for Those Fully Vaccinated: What Businesses Need To Know – Following last week’s recommendation from the Centers for Disease Control and Prevention (CDC) that fully vaccinated people are no longer required to wear a mask or socially distance in most settings, the Ohio Department of Health just issued a new Health Order to conform to the CDC’s guidance. What do Ohio employers – especially retail establishments – need to know about the May 17 Revised Health Order?

16. COVID-19 Workplace Compliance Now Clearer and Simpler for Michigan Employers: The 6 Key Requirements – Michigan workplace safety authorities released highly anticipated revised Emergency Rules on May 23 that streamline employer’s duties when it comes to responding to COVID-19-related concerns and better reflect the most recent CDC guidance on vaccinated individuals. The new rules from the Michigan Occupational Safety and Health Administration (MIOSHA) most notably remove the remote working requirement and virtually all masking and social distancing requirements for fully vaccinated employees. Further, the new MIOSHA Rules remove many administratively burdensome requirements such as performing employee exposure determinations and following detailed industry-specific safety requirements. In announcing the new MIOSHA Rules via Governor Gretchen Whitmer, MIOSHA also announced that it was withdrawing its draft permanent COVID-19 work rules, which means Michigan employers can only be subject to a MIOSHA emergency COVID-19 work rule until October 13, 2021. In light of all the changes, this article addresses the six key requirements all employers must follow under the revised Emergency Rules.

17. Santa Clara County Employers Must Track Employee Vaccinations: 8 Takeaways and a 5-Step Compliance Plan – Businesses in Santa Clara County must comply with the County’s new vaccine tracking mandate by June 1. The County of Santa Clara Emergency Operations Center issued a May 18 Order of The Health Officer Of the County of Santa Clara Establishing Focused Safety Measures To Protect The Community from COVID-19 requiring businesses to obtain the vaccination status of all “personnel” who are currently or will be working at a facility or worksite in the County. What do Santa Clara County businesses need to know about this requirement? Here are the eight key takeaways and a five-step compliance plan.

18. All In The Family, Part Two: Court Again Dismisses Lawsuit Alleging Family Member’s COVID-19 Workplace Exposure Claim – A California court just struck a second blow to the lawsuit brought by the wife of a California construction worker who alleged that her husband contracted COVID-19 from his workplace and then spread it to her. We previously reported on this case, in which the employee’s wife alleged that her husband’s employer negligently failed to follow healthcare protocols to avoid the spread of COVID-19 to its workers’ family members. On May 10, the U.S. District Court for the Northern District of California ruled that it remained unwilling to entertain the theory that an employer can be held liable in these kinds of family-transmission cases. But questions still remain about what other courts may conclude about an employer’s duty to protect employee’s family members from contracting COVID-19, so you’ll want to review a summary of this decision to minimize your risk of getting sued.