Blog, Employment Law
What Employers Should Consider When Mandating Vaccinations
Can employers legally mandate employees to be vaccinated with the Covid-19 vaccine? The short answer is yes… but it is not that simple. When considering mandatory vaccinations, it is imperative that employers understand the various equal employment opportunity laws that protect employee rights from discrimination and unlawful employment practices, including the Americans with Disability Act (ADA) and the Rehabilitation Act, Title II of the Genetic Information Nondiscrimination Act (GINA), Title VII, and the Pregnancy Discrimination Act (PDA). Preparation is key. In December, the U.S. Equal Employment Opportunity Commission (EEOC) provided updated guidance in light of the vaccination rollouts, specifically addressing mandated vaccinations. This guidance made clear that while employers may mandate and require proof of vaccination, employers should proactively instruct employees not to provide any other medical information to avoid implicating ADA protections. For example, if an employee provides medical information related to a health condition or disability (regardless if related to Covid-19 or a vaccination), the employer may be required to engage in a further interactive process to determine if the employee needs a workplace accommodation. When the employer has knowledge of such medical information – even when no accommodation is requested or needed – there is an increased risk for retaliation or discrimination claims if a future adverse action is taken against the employee at any time in the future. The EEOC guidance also warns that pre-screening for vaccinations might constitute a disability-related inquiry as such screening is likely to elicit medical information about a pregnancy or conditions such as allergies, preexisting conditions, or…
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Families First Coronavirus Response Act’s Impact on Municipalities and Government Entities
INTRODUCTION On March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act (the “Families First Act” or “Act”) which takes effect on April 1, 2020. The Families First Act includes two significant provisions mandating most employers to make sick leave and expanded family leave payments available to employees impacted by the coronavirus disease 2019 (“COVID-19”). Those provisions are the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act (the “EFMLEA). The Families First Act is applicable to private sector employers with less than 500 employees[1] and all local government employers[2] with one or more employee. As such, all governmental entities such as townships, counties, municipalities, school districts, fire districts and other political subdivisions are subject to the mandates under the Families First Act. The Act provides refundable payroll tax credits to private employers to ease the burden associated with these paid leave requirements. Unfortunately, these tax credits cannot be claimed by any entity, agency or instrumentality of State or local government. This memorandum briefly summarizes the impact the Families First Act will have on our governmental clients throughout the state. OVERVIEW The Emergency Paid Sick Leave Act applies to all employee leaves taken from April 1, 2020 through December 31, 2020. All governmental employers with one or more employee are required to provide two weeks (up to 80 hours) of paid sick leave for employees meeting the COVID-19 related criteria described below. Employees unable to work due to a bona fide need to care for an individual…
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CORONAVIRUS AID, RELIEF AND ECONOMIC SECURITY ACT (“CARES ACT”)
On March 27, 2020, President Trump signed into law the Coronavirus Aid, Relief and Economic Security Act (“CARES Act”). This historic economic recovery package, commonly referred to as “Phrase Three,” is intended to provide relief to the American economy in response to the coronavirus disease 2019 (“COVID-19”). The CARES Act contains numerous significant provisions impacting individual Americans and businesses of all sizes. ALL BUSINESSES Employee Retention Credit The CARES Act creates a tax credit equal to 50% of the qualified wages paid to employers during the COVID-19 outbreak. Eligible employers are those whose: (1) operations are fully or partially suspended because of a governmental COVID-19 order; and (2) gross receipts declined by more than 50% compared to the same quarter in the previous year. For employers with more than 100 full-time employees, qualified wages are those paid to employees when they are not providing services because of COVID-19. For employers with less than 100 full-time employees, qualified wages are those paid to employees whether the employer is still in operation or ordered to shut-down because of COVID-19. The credit is for the first $10,000 of compensation for each employee, including health benefits. Other Key Provisions The CARES Act permits employers and self-employed individuals to defer payment of the 6.2% social security tax on employee wages. The deferred payments must be paid over the following two years. The CARES Act also permits employers to provide a tax-free student loan repayment benefit to employees. Employers can contribute up to $5,250 annually towards employees’ student loans, and that amount…
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NEW COVID-19 Employer Pay/Leave Regulations
Update April 1, 2020: At the time of our initial post, the federal government had not defined health care providers or emergency responders. In a new FAQ sheet, the Department of Labor has defined both classifications: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions FAQ 56: Who is a “health care provider” who may be excluded by their employer from paid sick leave and/or expanded family and medical leave? For the purposes of employees who may be exempted from paid sick leave or expanded family and medical leave by their employer under the FFCRA, a health care provider is anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions. This definition includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility. This also includes anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is a health care provider necessary…
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“Announcing” Employee Departures – A Practical, Nitty-Gritty Guide To Minimizing Disclosures About Former Employees
Clients frequently ask me what the “best” way is to announce a particular employee’s departure from their organization, and – as you might expect – that question gets asked more often when the departing employee is leaving under “less than ideal” circumstances. Sometimes it’s because the employee has done something “sensationally” wrong (bad behavior towards coworkers or clients, using the company Internet for things you’d have been happy never to hear about, criminal activity, etc.); sometimes the employee’s transgressions are objectively ho-hum but they’re a long-tenured or popular fixture with colleagues or customers who undoubtedly will be upset by their exit. Whatever the specifics, the same risks and recommendations generally apply. Legal Considerations Indiana has no specific statute or regulation governing how to “announce” an employee’s departure. Indiana does have a “service letter law” that requires employers to provide certain information in writing to the departing employee, but only in response to a qualifying request from that employee. That’s not the sort of “announcement” most employers ask about (though you should be aware of that law and consult counsel if you ever receive anything you think might be a qualifying request from a former employee). Indiana also has a statute that gives a certain amount of immunity (read: “protection”) to employers who provide truthful information in response to requests from other prospective employers, but that too usually doesn’t apply to the situations causing employers to ask questions about “announcements.” Most often, employers want to know what they can/should tell the rest of their workforce and/or customers,…
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So…Now What? What Employers Should Know And Be Doing About The New Proposed Overtime/Minimum Salary Rule
If you run a business, there’s a decent chance your inbox has been/will be more crowded than usual this days with alerts about the new Department of Labor (DOL) Overtime/Minimum Wage Rule. And you may also get a slight feeling of déjà vu, because the same thing happened back in the Fall of 2016. That’s when a federal judge blocked the Obama Administration DOL from implementing a rule that would have significantly increased the minimum salary employers have to pay employees who are classified as exempt under the Fair Labor Standards Act (FLSA). Rather than fighting over that version of the rule in court, the DOL went back to the drawing board, and it’s been working on a revised regulation for the last couple years. On March 7, 2019 DOL unveiled its long-awaited proposal for the “Minimum Salary Rule 2.0.” The full DOL proposal exceeds 200 pages, but your friendly neighborhood @HoosierHRLawyer prefers bullet points where possible (actually, one of my mentors taught me to hate bullet points, so here’s some ordered lists instead): What’s The New (Proposed) Rule Say? Well, a lot. But here’s some highlights: If you’re an employer in any of the 50 U.S. States and have “white collar exempt” employees (administrative, executive, or professional), you’ll need to pay them at least $35,308 annually ($679 per week). This is an increase from the current rule, which requires only $23,660 annually ($455 per week). If you don’t pay your exempt workers the minimum salary (consistently each week), you can’t treat them as exempt, and…
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Tips For Welcoming Transgender Employees
The exact scope and coverage of workplace legal protections for transgendered individuals isn’t entirely settled. But as a practical matter, employers are wise to treat transgender status the same as race, age, and other “traditional” protected statuses. Why? Many reasons, but here’s two: kindness and respect towards individuals makes good HR and business sense, AND employees who feel protected and respected are far less likely to bring legal claims (with all the attendant cost, angst, and disruption). Here are some specific pointers for creating a professional work environment for transgendered or transitioning employees. Use Individual’s Preferred/Chosen Names And Pronouns – The occasional inadvertent slip may happen. But as a matter of effort and practice, strive to call everyone by their name and use pronouns that match the gender with which they identify. Avoid Excessively Personal Questions – If you wouldn’t ask it of a traditional or “cis-gendered” person (e., someone whose gender identity and expression match the biological gender of their birth), don’t ask it of a transgendered or transitioning employee. Don’t Discuss Coworkers’ Personal Business Behind Their Backs – Good advice for all But especially when it comes to employee sexual orientation or gender identity, employers should never intentionally “out” anyone (and should strive mightily to avoid doing so unintentionally too)! Know The Restroom Rules – OSHA requires that all have access to restrooms that correspond to their gender identity, and both OSHA and EEOC forbid “segregating” transgendered individuals or requiring them to use specific facilities. If you know or anticipate that non-transgender coworkers…
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You’ve got 70 year olds working alongside 19 year olds, what could possibly go wrong?
Check out this fascinating article on the research and practical implications of the fact that America – for the first time ever – has five separate generations sharing the same workplace. As the article emphasizes, stereotypical assumptions about any particular generation are rarely helpful. And as we’ve seen in our own experiences counseling clients, just about every manager (regardless of their generation or the generations they manage) can benefit from decreased reliance on electronic communications and increased focus on in-person, individualized messaging. For more food for thought, read the full article here.
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Personnel Decisions: Don’t We Have To Treat All Employees “The Same?”
No. You really don’t. Not in an absolute sense anyway. Under most equal employment opportunity or workplace civil rights laws, you need to treat similarly situated people similarly. That doesn’t mean “identical always in all ways.” Employees rightly expect consistency and everyone naturally feels that prior situations involving leave, discipline, termination, pay, etc. “set precedents.” So it’s wise to strive for consistency as a general goal. But there are plenty of legitimate and non-discriminatory reasons – including the passage of time and accompanying changes in business, financial, or other operational circumstances – that may justify treating one employee “differently” than you’ve treated others in the past. Of course, any reason(s) for “differential” treatment must be verifiably true, business-related, and unrelated to the employee’s legally protected status or conduct. In addition, such reasons should be well and carefully documented. While each situation is unique, here are some “differentiators” that may justify treating a given employee differently from others Temporary regular employee status The employee engaged in a different type or degree of misconduct compared to others (assaulting a coworker is different than tardiness!) Supervisor v. non-supervisory status (shouldn’t you hold leaders to a higher standard?) Intervening change in applicable policies/processes (preferably documented) Prior disciplinary history (or LACK thereof) In discharge/discipline decisions, strength (or lack) of evidence of policy violation or other wrongdoing In hire/promotion decisions, strength (or lack) of prior, relevant experience or education Materially different job duties, functions or expectations Other “mitigating” or “aggravating” factors Everyone wants and deserves to be treated “fairly,” but that doesn’t…
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“May I Have This Dance?” A Holiday Guide To The ADA Interactive Process
The Americans with Disabilities Act (ADA) requires employers to engage applicants and employees with medical limitations in an “interactive process” to see what (if any) “accommodation” should be provided to help them do their jobs. But that’s a dry legal concept. Let’s be more practical – and festive! Think of the accommodations process as a dance. And the next time you need to discuss a potential accommodation, follow these simple steps… Don’t Talk In Legalese – Though easy to do, don’t discuss “disabilities” or “accommodations” (or “undue hardships”) with your employees. Those are legal conclusions, and if you need to make them at all you should make them AFTER you gather case-specific information. If you know you have an employee with “some need,” just talk to them about what that need is. As you do that, talk instead about an employee’s “conditions” or “restrictions” and ways you can “help” or “assist.” Think of it as the difference between saying “wanna dance” and “would you like to waltz with me along the line of dance at 58 measures per minute?” Which sounds more enjoyable? Talking like a real human being almost always helps the “interactive” part of the interactive process! Talk To The Employee – Actually, do mostly listening. Start with a simple “how can we help you?” and take good notes. Ask follow-up questions focused on “what can you do” and “what can’t you do” in relation to the particular job/position. In return, promise nothing except prompt review and follow-up. In other words, let your dance…
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