The lawyers at Muskat, Mahony & Devine have created a list of proposed New Year’s resolutions for you and your company to consider in the upcoming year. We hope you find them helpful. From everyone at M2D, Happy New Year and all the best in 2022!
Resolve to Implement an Updated (and Lawful) Workplace COVID Strategy
As employers have tried to determine effective strategies for keeping the workplace safe from COVID, they have been whiplashed by conflicting and ever-changing legal requirements at the federal and state levels as to vaccine and testing options. In Texas, for example, it is currently unclear the extent to which certain employers must mandate vaccination or, conversely, whether they even may mandate it. Additionally, there are open questions regarding employers must pay for COVID tests or the time spent taking the tests. To be sure, employers need effective COVID safety protocols. But as agencies and the courts continue to wrestle with these legal questions, employers must stay abreast of the developments and be prepared to change course when necessary.
Resolve to Up Your Compliance Game
“Normal” compliance tasks have been substantially modified or taken a backseat altogether in the last two years due to COVID. For example, authorization for remote verification of Form I-9 documentation, which many employers have taken advantage of, is set to expire in March 2022. Likewise, the submission of EEO-1 (Component 1) workforce demographic data was pushed back for 2019 and 2020 due to COVID, but appears to be getting back on a more normal schedule with data collection scheduled to open on April 12, 2022. There are also new compliance obligations on the horizon for many employers, especially federal contractors. For example, on December 2, 2021, OFCCP announced it is moving forward with its long-awaited online AAP verification portal which will require covered federal contractors to use the portal to certify annually (by June 30, 2022) whether they have complied with their obligations surrounding the creation and maintenance of an affirmative action plan. Employers should resolve to be ready for these changes and make sure their federal and state compliance checklists are up to date.
Resolve to Understand Religious Accommodation Obligations
Most employers understand Title VII’s prohibitions on discrimination, including on the basis of religion; fewer understand the affirmative obligation under the law to accommodate sincerely held religious beliefs and practices. There’s a reason for this: Until recently, religious accommodation requests were rarely made, at least when compared to requests for accommodation under the Americans with Disabilities Act. The COVID-19 pandemic, and more specifically vaccine mandates arising from the pandemic, have changed this. Employees are more educated than ever before about the right to religious accommodation, and requests for accommodation have become commonplace (both with respect to vaccine mandates and more generally). As we continue to manage the pandemic’s impacts on the workplace, and the challenges that come from new COVID-19 variants such as Omicron, human resources and employment law professionals should act now to fully understand religious accommodation obligations under Title VII. A good place to start is with the EEOC’s Guidance on Religious Discrimination, issued on January 15, 2021.
Resolve to Understand the ADA’s Confidentiality Obligations
With an influx of vaccination records and COVID test results, employers are being reminded that the Americans with Disabilities Act (ADA) requires them to keep confidential medical information separately from an employee’s personnel file in order to limit access to this private information, and the information should be shared only a need-to-know basis. The Equal Employment Opportunity Commission (EEOC) has made it clear that any medical files related to COVID-19 (including vaccination records, testing results, temperature check logs, and vaccination logs) are considered confidential medical information and must be treated appropriately. Additionally, employers are required to retain personnel and employment records (including confidential medical information) for one year from the date the record is made. As we begin the new year, employers should resolve to review their ADA compliance and segregate all confidential medical information.
Resolve to Review Your Compensation Policies
While vaccine policies and related mandates have taken priority for employers this year, wage and hour laws have changed in many respects and will affect employers’ compliance with the Fair Labor Standards Act (“FLSA”) and equivalent state laws. In particular, employers should note the following:
- Minimum salary thresholds for exempt employees have or will soon increase in some states. These states include Colorado, Maine, New York (including certain localities), Pennsylvania, and Washington. The minimum salary thresholds in these states are greater than the $684 per week required under the FLSA.
- Minimum wage thresholds have or will soon change in several states. These states include Arizona, California, Colorado, Connecticut, Florida, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nevada, New Jersey, New Mexico, New York, Ohio, Oregon, Rhode Island, South Dakota, Vermont, Virginia, and Washington. Note that minimum wages in these states are greater than the federal minimum.
- Straight day-rate compensation does not satisfy the FLSA’s salary basis test in the Fifth Circuit. Earlier this year, the Fifth Circuit held in Hewitt v. Helix Energy Solution Group Inc., that a day rate—no matter how high—can be considered a salary only if an employer pays a guaranteed weekly minimum amount regardless of days or hours worked and there is a “reasonable relationship” between the guaranteed pay and the amount actually earned.
In light of these developments, employers should resolve to review and revise their compensation policies to ensure compliance with state and federal laws in 2022.