AUGUST 2022 • Vol.9 • No.08
(ISSN 2564-2022)
Covid-19 Testing, Vaccination And Accommodation Policies: How Employers Can Stay Compliant - Bryn Goodman, Glenn S. Grindlinger and Daniel V. Kitzes Fox Rothschild, LLP
15
What Should Be On Every HR Executive's Agenda NOW - Carrie B. Cherveny, Hub International
24
32
37
EEOC’s New Workplace Covid-19 Testing Rules: 7 Takeaways For Employers
Michigan LGBTQ: Sex Discrimination Law Includes Sexual Orientation
Building Equity Into Workplace Wellness
Ledezma,
- James F. Hermon and
Robert A. Boonin,
- Dr. LouAnne Giangreco,
- Myra K. Creighton and Aymara Fisher & Phillips, LLP
Dykema
WellRight
INDEX
HR Legal & Compliance Excellence AUGUST 2022
Vol.09
No.08
(ISSN 2564-2022)
07
Covid-19 Testing, Vaccination And Accommodation Policies: How Employers Can Stay Compliant EEOC updates workplace guidance on Covid-19 protocols
On the Cover
- Bryn Goodman, Partner, Glenn S. Grindlinger, Associate, and Daniel V. Kitzes, Partner, Fox Rothschild, LLP
Articles 11 Michigan Minimum Wage, Paid Sick Leave Laws Rise From The Dead Employers should prepare for more employeefriendly minimum wage and paid sick leave laws - Michael Cardman, Senior Legal Editor, XpertHR
19 Top 5 Reasons To Optimize Your Remote Work Policy Ensuring employees do not hop from place-to-place - Todd R. Wulffson Managing Partner, and Mark S. Spring, Office Managing Partners & Chair,
Traditional Labor Law Practice Group, CDF Labor Law, LLP
30 Remote Work: Protected Leave And Workers’ Compensation Considerations for employers with remote workers - Nicolas K. Ball, Attorney, Barran Liebman, LLP
34 Remote Work: How To Ensure Secure Access To Information Addressing the big shift in what employees expect from their work environment - David Gentry, SVP, Human Resources, HID Global
40 Employee Data To Enhance Workplace Safety And Employee Productivity Better collaboration and intelligence are mandatory for a motivated workforce - Mike Steere, Co-founder, SaferMe
TOP PICKS
15
INDEX
What Should Be On Every HR Executive's Agenda NOW Important areas to watch out for in future - Carrie B. Cherveny, Senior Vice President, Employment
Solutions, global insurance brokerage Hub International
24
EEOC’s New Workplace Covid19 Testing Rules: 7 Takeaways For Employers Key changes employers need to make - Myra K. Creighton Labor & Employment Partner, Aymara Ledezma, Associate, Fisher
& Phillips, LLP
32
Michigan LGBTQ: Sex Discrimination Law Includes Sexual Orientation Learn what Michigan Supreme Court's new landmark ruling means - EJames F. Hermon and Robert A. Boonin, Labor and Employment Attorneys, Dykema
37
Building Equity Into Workplace Wellness Key things to consider while building an equitable workplace wellness program - Dr. LouAnne Giangreco, Chief Medical Officer,
WellRight
How are our Legal & Compliance Products and Services helping to make you smarter? SEP 2017 • Vol. 5 • No. 09
Legal & Compliance Excellence - Monthly Interactive Learning Journal This monthly interactive learning experience showcases solutions to deal with the latest legal and compliance issues facing corporations and legal departments.
Legal and Compliance Webcasts for Credit HR.com offers various informative webcasts on a variety of topics including the latest HR compliance updates and legal considerations for employers and all HR professionals. Webcasts are available live online with a downloadable podcast and a copy of the slides (PDF) available before and after each webcast. Earn all of the required recertification credits for aPHR, PHR, SPHR, GPHR, and SHRM Certifications. HR.com’s one-hour webcasts, in every HR specialty including Legal and Compliance, are pre-approved for HRCI and SHRM credit (excluding Demo webcasts).
Legal and Compliance Community Join almost more than 30,000 HR.com members with a similar interest and focus on compliance on legal regulations in HR. Share content and download research reports, blogs, and articles, network, and “follow” peers and have them “follow” you in a social network platform to communicate regularly and stay on top of the latest updates. This well established Legal and Compliance Community is an invaluable resource for any HR professional or manager.
Use these invaluable Legal & Compliance resources today! For more information phone: 1.877.472.6648 | email: sales@hr.com | www.hr.com
EDITOR’S NOTE Editorial Purpose Deepa Damodaran
Debbie Mcgrath
Our mission is to promote personal and
Editor, HR Legal & Compliance Excellence
Publisher, HR.com
professional development based on constructive values, sound ethics, and timeless principles.
Excellence Publications Debbie McGrath
CEO, HR.com - Publisher
Dawn Jeffers VP, Sales
Sue Kelley
Director (Product, Marketing, and Research)
Babitha Balakrishnan and Deepa Damodaran
Excellence Publications Managers and Editors
HR Legal & Compliance Excellence Team Deepa Damodaran, Editor Raksha Sanjay Nag, Junior Editor Chinnavel
Design and Layout (Digital Magazine)
Covid-19, Sex Discrimination and Remote Work: HR Certainly Has a LOT on its Plate at the Moment
H
uman resources (HR) has a lot on its plate as employers and workplaces emerge from Covid-19 remote work arrangements. It has been about two years since many offices were filled with employees milling around, having lunch, and talking shop. Likewise, it has been some time since many HR professionals have had the opportunity to review many of their foundational documents, such as employee handbooks and related SOPs. What should be top of mind as HR returns to office?
Chandra Shekar
Magazine (Online Version)
Submissions & Correspondence Please send any correspondence, articles, letters to the editor, and requests to reprint, republish, or excerpt articles to ePubEditors@hr.com. For customer service, or information on products and services,
Featured on the cover, this month, is an article from Fox Rothschild, LLP, attorneys Bryn Goodman, Glenn S. Grindlinger and Daniel V. Kitzes. This article, titled Covid-19 Testing, Vaccination And Accommodation Policies: How Employers Can Stay Compliant, touches upon EEOC’s updated guidelines on Covid-19 protocols.
employers’ testing, vaccination and accommodation policies. Read, Michigan LGBTQ: Sex Discrimination Law Includes Sexual Orientation by labor and employment experts James F. Hermon and Robert A. Boonin from Dykema. In this article, the authors go in-depth into the Michigan Supreme Court’s landmark ruling to include gender identity and sexual orientation under sex discrimination law. This ruling overturned a precedent set nearly 30 years ago by the Michigan Court of Appeals in Barbour v. Department of Social Services. Check out Hub International’s Carrie B. Cherveny’s article, where she discusses five topics that (What) Should Be On Every HR Executive’s Agenda NOW. This is not all! This issue of HR Legal & Compliance Excellence also focuses on other legal aspects and highlights that should help you keep your workforce healthy, safe and secured.
call 1-877-472-6648
For Advertising Opportunities, email: sales@hr.com
HR Legal & Compliance Excellence (ISSN 2564-2022) is published monthly by HR.com Limited, 56 Malone Road, Jacksons Point, Ontario L0E 1L0
The revisions — designed to adapt the guidance to the changing Covid-19 landscape — have significant implications for
Subscribe now for $99 / year And get this magazine delivered to your inbox every month
Happy Reading! Write to the Editor at ePubEditors@hr.com
Become a Member Today to get it FREE! OR
SIGN UP
Internet Address: www.hr.com Copyright © 2022 HR.com. No part of this publication may be reproduced or transmitted in any form without written permission from the publisher. Quotations must be credited.
Disclaimer: The views, information, or opinions expressed in the Excellence ePublications are solely those of the authors and do not necessarily represent those of HR.com and its employees. Under no circumstances shall HR.com or its partners or affiliates be responsible or liable for any indirect or incidental damages arising out of these opinions and content.
WHY EXCELLENCE PUBLICATIONS?
In a world of unparalleled challenges (global pandemic, racial injustice, political rivalry, digital 4.0, emotional malaise), uncertainty reigns. Finding opportunity in this context requires harnessing uncertainty and harnessing starts with reliable, valid, timely, and useful information. The Excellence publications are a superb source of such information. The authors provide insights with impact that will guide thought and action.
Dave Ulrich Rensis Likert Professor, Ross School of Business, University of Michigan Partner, The RBL Group
Excellence publications are my ‘go-to’ resource for contemporary and actionable information to improve leadership, engagement, results, and retention. Each edition offers rich and diverse perspectives for improving the employee experience and the workplace in general.
Julie Winkle Giulioni Author, Virtual /Live Keynote Presenter, Inc.’s Top 100 Leadership Speakers
I regularly read and contribute to Leadership Excellence and Talent Management Excellence. I use many of the articles I read to augment my own presentations and I often share the articles with my clients. They are always quick, right on target for the latest issues in my field, and appreciated by my clients. If you want to stay up to date on the latest HR trends, choose a few of the different issues from the Excellence series of publications.
Dr. Beverly Kaye CEO, BevKaye&Co.
We’re eager to hear your feedback on our magazines. Let us know your thoughts at ePubEditors@hr.com
COVER ARTICLE
Covid-19 Testing, Vaccination And Accommodation Policies: How Employers Can Stay Compliant EEOC updates workplace guidance on Covid-19 protocols By Bryn Goodman, Glenn S. Grindlinger and Daniel V. Kitzes, Fox Rothschild, LLP
T
he Equal Employment Opportunity Commission (EEOC) recently updated its Technical Assistance Questions and Answers related to Covid-19 and its interaction with federal anti-discrimination laws. The revisions — designed to adapt the guidance to the changing Covid-19 landscape — have significant implications for employers’ testing, vaccination and accommodation policies.
Covid-19 Testing Policies
Previously, the EEOC viewed mandatory worksite Covid-19 testing as compliant with the Americans with Disabilities Act (ADA) standard that medical testing is “job related and consistent with business necessity.”
testing as a requirement to return to the office must now consider whether it “can show [that testing] is job-related and consistent with business necessity.” Notably, however, the EEOC states that employers will satisfy the “business necessity” requirement if their testing is consistent with current guidance from the Centers for Disease Control and Prevention, the Food and Drug Administration, and/or state and local public health authorities. According to the EEOC,
The EEOC guidance, which was updated on July 12, 2022, now requires employers to individually assess whether viral screening testing is justified considering its workplace and current pandemic circumstances. An employer seeking to require regular Covid-19
HR Legal & Compliance Excellence presented by HR.com
August 2022
7
Submit Your Articles
Covid-19 Testing, Vaccination And Accommodation Policies: How Employers Can Stay Compliant
employers should also consider the following factors when determining whether testing is job-related and consistent with business necessity: ●● community transmission levels ●● employees’ vaccination status ●● accuracy and speed of processing for different types of viral tests ●● what types of contacts employees may have with other employees and individuals in the workplace ●● the degree to which breakthrough infections are possible for employees who are “up to date” on vaccinations
guests, etc.), and the requirement is applied uniformly, then employers may also test job applicants. Otherwise, applicants should only be tested after a conditional offer of employment has been made. An employer may withdraw a job offer if an employee tests positive for Covid-19 or is required to quarantine or isolate only if “(1) the job requires an immediate start date, (2) CDC guidance recommends the person not be in proximity to others, and (3) the job requires such proximity to others, whether at the workplace or elsewhere.”
●● the possible severity of illness from current variant(s)
Nevertheless, the EEOC encourages employers to consider whether adjusting a start date or permitting telework are feasible solutions. Employers may not withdraw a job offer because they are concerned an individual is more vulnerable or more likely to develop severe disease from Covid-19.
●● the potential impact on operations if an employee enters the workplace with Covid-19.
No Antibody Testing
●● the ease of transmissibility of current variant(s)
The new EEOC guidance is more in line with some states’ stricter standards, such as those of California’s Department of Fair Employment and Housing (DFEH). The DFEH guidance has long couched mandatory testing in the need to establish that it is “job-related and consistent with business necessity.” Specifically, the DFEH guidance provides that, “[e]mployers may require that employees submit to viral testing in order to determine whether an employee has Covid-19 infection, before allowing an employee to enter the workplace. That is because an employee with Covid-19 is unable to perform the employee’s essential duties in a manner that would not endanger the health or safety of others in the workplace even with reasonable accommodation there.” The new EEOC guidance reflects the developing reality that vaccination rates, community transmission and other environmental factors are important considerations in assessing whether employees can perform duties safely without testing.
If an employer determines that mandatory testing is a business necessity and required for anyone to enter the workplace (i.e., employees, visitors, contractors,
August 2022
Mandatory Employer Vaccination Programs
Similarly, while the EEOC’s guidance permits employers to implement mandatory vaccination requirements, subject to reasonable accommodation requirements, there are discrimination and confidentiality considerations associated with such programs. The EEOC cautions that such requirements may be discriminatory if they affect certain demographics more than others. Employers are not exempt from a disparate impact claim if such a vaccine requirement disproportionately excludes certain employees from the workplace based on race, color, religion, sex, or national origin. Employers that choose to implement a vaccination policy should evaluate whether the requirement disproportionately impacts some protected groups more than others.
Testing Applicants
HR Legal & Compliance Excellence presented by HR.com
An employer may never require antibody testing as a condition to enter the workplace or return to work. The EEOC explains that “antibody testing may not show whether an employee has a current infection, nor establish that an employee is immune to infection; as a result, it should not be used to determine whether an employee may enter the workplace.”
8
Submit Your Articles
Covid-19 Testing, Vaccination And Accommodation Policies: How Employers Can Stay Compliant
that age alone is insufficient to warrant a reasonable accommodation from a mandatory vaccination policy.
Employers must also be mindful of confidentiality concerns. If an employer ultimately implements a mandatory vaccination requirement, it can require documentation confirming that employees are up to date on their vaccination or “fully vaccinated” as defined by CDC. However, under the ADA, all such medical information must be kept confidential and stored separately from the employee’s personnel files. This information should only be shared with employees who need it to perform their job duties (e.g., to perform recordkeeping of such documentation, limit building entry, etc.).
Personal Protective Equipment (PPE)
The EEOC’s guidance also states that employees who cannot comply with PPE and other infection control measures (e.g., hand washing, etc.) due to a disability or religious belief must be offered reasonable accommodations unless such accommodations pose an undue hardship to the business. However, employers and employees must remain compliant with regulations issued by the Occupational Safety and Health Administration (OSHA) and other health and safety laws.
Reasonable Accommodations
The EEOC’s guidance as to disability or religious accommodation requests continues to require that employers engage in the interactive process by discussing the request and providing reasonable accommodations that do not cause undue hardship to the business. Employers will likely see more accommodation requests whether they implement testing or vaccination requirements or not. Employers should consider, but are not required to implement, procedures that clearly establish how to apply for and respond to employees’ requests for reasonable accommodations. Employers that fail to timely respond to such requests, will be responsible for showing how specific pandemicrelated circumstances justified a delay in offering or providing a reasonable accommodation.
Indeed, the EEOC acknowledges that some employers may need to comply with regulations issued by OSHA that require the use of PPE. In short, OSHA regulations do not prohibit reasonable accommodations under ADA or Title VII; but if there is a direct conflict between the accommodation and OSHA, the employer can deny the accommodation.
Direct Threat
In addition, if the employer believes that allowing an employee with a disability to return to work would pose a “direct threat” (that is “significant risk, or substantial harm”) to the health or safety of the employee or others that cannot be eliminated or reduced by reasonable accommodation, then the employer may exclude the person from the workplace.
The EEOC clarifies that under the ADA the employer does not need to proactively ask an employee if they require an accommodation, even if they are on record having a disability. However, state and local laws might require the employer to affirmatively inquire about the need for accommodation (e.g., the New York City Human Rights Law and the California Fair Employment and Housing Act place the burden on the employer if it had reason to know that the person may need an accommodation).
Whether the condition poses a direct threat must also be an individualized assessment considering “the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm.” This assessment should include considerations based on the severity of the pandemic in a particular area and the employee’s own health (for example, is the employee’s disability well controlled), vaccination status and the employee’s particular job duties. The EEOC clarifies that simply having a medical condition that places someone at higher risk for severe disease with Covid-19 is not enough to be considered a direct threat.
Under certain circumstances, employers could be required to provide reasonable accommodation to employees who are at an increased risk for severe infection with Covid-19, such as those who have a specific medical condition. However, the EEOC notes
HR Legal & Compliance Excellence presented by HR.com
August 2022
9
Submit Your Articles
Covid-19 Testing, Vaccination And Accommodation Policies: How Employers Can Stay Compliant
If the assessment demonstrates that an employee with a disability, who is not vaccinated, would pose a direct threat to themself or others, the employer must consider whether providing a reasonable accommodation, absent undue hardship, would reduce or eliminate that threat. Even where a direct threat exists, the employer cannot exclude the employee if there are reasonable accommodations that would eliminate or sufficiently reduce the risk so that it would be safe for the employee to return to the workplace, while still permitting the employee to perform the essential functions of the job.
●● Erecting a barrier that provides separation between an employee with a disability and coworkers/the public ●● Increasing the space between an employee with a disability and others ●● Elimination or substitution of certain less-critical or incidental job duties ●● Telework ●● Modification of work schedules (if that decreases contact with coworkers and/or the public when on duty or commuting) ●● Moving the location of where one performs work (for example, moving a person to the end of a production line rather than in the middle of it if that provides more physical distancing).
The EEOC offered examples of reasonable accommodations that, absent undue hardship, may eliminate a direct threat to self or others: ●● Additional or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to, or require from, employees returning to its workplace
Employers should consult their attorneys when developing their Covid-19 safety requirements and accommodation policies, and stay up to date with federal, state and local public health recommendations.
●● Additional or enhanced protective measures, such as high efficiency particulate air (HEPA) filtration systems/units or other enhanced air filtration measures
Bryn Goodman is a Partner at Fox Rothschild LLP. Bryn focuses her practice on guiding employers and management on all aspects of employment law, with experience in a variety of industries including hospitality, insurance, finance, architecture, healthcare and technology.
This article first appeared here.
Daniel V. Kitzes is an Associate at Fox Rothschild LLP. Daniel represents large and small businesses in a wide array of labor and employment matters. A proficient litigator, Daniel has experience defending Private Attorneys General Act (PAGA), class action, wage & hour, whistleblower, discrimination and harassment cases, as well as contract and breach of warranty matters.
Glenn S. Grindlinger is a Partner at Fox Rothschild LLP. Glenn is the regional practice lead for the firm’s Labor & Employment Department in New York City. He represents management in the full spectrum of labor and employment law matters.
Would you like to comment?
HR Legal & Compliance Excellence presented by HR.com
August 2022
10
Submit Your Articles
Michigan Minimum Wage, Paid Sick Leave Laws Rise From The Dead Employers should prepare for more employee-friendly minimum wage and paid sick leave laws By Michael Cardman, XpertHR
UPDATE: July 22, 2022 - The State of Michigan has filed an appeal and a motion to stay, seeking to delay implementation and enforcement of the ruling.
The Michigan Court of Claims has struck down the state’s current minimum wage law, known as the Improved Workforce Opportunity Wage Act, and its paid sick leave law, known as the Paid Medical Leave Act.
HR Legal & Compliance Excellence presented by HR.com
August 2022
11
Submit Your Articles
Michigan Minimum Wage, Paid Sick Leave Laws Rise From The Dead
the details, we are stunned by this determination and its many varied implications. The talent shortage has employers already paying historic wages and benefits - all while facing rising inflation and supply chain chaos - just to keep the doors open. ... We remain hopeful the Court of Claims decision ultimately will be overturned.”
Background Michigan is one of several states that allow voters to initiate legislation via petitions. In 2018, a coalition of advocacy groups gathered signatures and successfully petitioned to add initiatives to raise Michigan’s minimum wage and require employers to offer paid sick leave. At this point, the state legislature had three options: ● Adopt the proposals as is, without change; ● Reject the proposals, meaning they would then be placed on the fall ballot and could either be accepted or rejected by voters (and, if adopted by voters, the legislation could then have been amended only with a three-quarters majority in the legislature); or
In their place, the court restored earlier versions of the laws passed in 2018, which are significantly more beneficial to employees.
● Propose an alternative version for voters to also consider.
It is unclear whether employers must immediately comply with the 2018 laws - and if so, whether they must do so retroactive to the court’s ruling on July 19, 2022, or to their passage on September 5, 2018.
The legislature chose option one and adopted the proposals as is. However, later that session, the legislature passed amendments that watered down the original versions.
When asked these questions by XpertHR, the Michigan Department of Labor and Economic Opportunity would only say, “The Department is committed to making sure that workers and families have access to the pay and benefits they deserve, and we are reviewing the judge’s decision to determine next steps and ensure the state is in compliance with the law.”
Back to the Future
The changes were “substantial,” according to the court. For instance, the Improved Workforce Opportunity Wage Act was amended to: ● Reduce the scheduled increases in the minimum wage;
In a statement, the Michigan Chamber of Commerce said, “We are incredibly concerned about the crippling effect this ruling could have on Michigan employers and employees alike. While we are still sorting through
HR Legal & Compliance Excellence presented by HR.com
August 2022
12
● Repeal annual inflation adjustments in later years; and ● Restore the tip credit, which was to have been phased out under the original version.
Submit Your Articles
Michigan Minimum Wage, Paid Sick Leave Laws Rise From The Dead
The table below shows the two versions side by side.
Minimum Wage
Minimum Direct Cash Wage for Tipped Employees
Maximum Tip Credit
Year
Original
Amended
Original
Amended
Original
Amended
2018
$9.25
$9.25
$3.52
$3.75
$5.73
$5.50
2019
$10.00
$9.45
$4.80
$3.75
$5.20
$5.70
2020
$10.65
$9.651
$6.39
$3.75
$4.26
$5.90
2021
$11.35
$9.65
$7.95
$3.75
$3.40
$5.90
2022
$12.00
$9.87
$9.60
$3.75
$2.40
$6.12
2023
TBD2
$10.10
TBD3
$3.75
TBD
$6.26
2024
TBD2
$10.33
TBD3
$3.75
N/A
$6.40
2025
TBD2
$10.56
TBD3
$3.75
N/A
$6.55
2026
TBD2
$10.80
TBD3
$3.75
N/A
$6.70
2027
TBD2
$11.04
TBD3
$3.75
N/A
$6.84
2028
TBD2
$11.29
TBD3
$3.75
N/A
$7.00
2029
TBD2
$11.54
TBD3
$3.75
N/A
$7.15
2030
TBD2
$11.79
TBD3
$3.75
N/A
$7.31
2031
TBD2
$12.05
TBD3
$3.75
N/A
$7.47
1. Michigan’s minimum wage originally was scheduled to increase to $9.87 per hour effective January 1, 2021, but this increase and subsequent increases were delayed by a year under a provision pausing scheduling increases when unemployment exceeds 8.5%. 2. Under the original Improved Workforce Opportunity Wage Act (IWOWA), the minimum wage was to be adjusted for inflation starting on January 1, 2023, and every January 1 thereafter.
August 2022
The amendments to the Paid Medical Leave Act (which originally was called the Earned Sick Time Act) also were substantial. Among other things, they: ● Exempted employers with fewer than 50 employees; ● Lowered the minimum number of hours that could be used in a year; and
3. Under the original Improved Workforce Opportunity Wage Act (IWOWA), the minimum direct cash wage was scheduled to increase to 90% of minimum
HR Legal & Compliance Excellence presented by HR.com
wage effective January 1, 2023, and to 100% of the minimum wage effective January 1, 2024, meaning the tip credit would effectively be eliminated.
● Repealed retaliation protections.
13
Submit Your Articles
Michigan Minimum Wage, Paid Sick Leave Laws Rise From The Dead
Earned Sick Time Act (Original)
Paid Medical Leave Act (Amended)
Employer Coverage
One or more employee
50 or more employees
Employee Coverage
Almost all employees, except federal government workers
Only individuals for whom the employer must withhold federal income tax; excludes employees who work fewer than 25 hours per week, employees who work 25 weeks or fewer per year, independent contractors and others
Accrual
One hour of paid leave for every 30 hours worked, up to 72 hours of paid time
One hour of paid leave for every 35 hours worked, up to 40 hours of paid time
Frontloading
No frontloading option
An employer may “frontload” leave time at the start of a calendar year as an alternative to accrual
By making such significant changes after adopting the original versions, the legislature “effectively thwarted the intent of the People and denied them the opportunity to vote on whether they preferred the voter-initiated proposal or the Legislature’s suggested modifications,” the court held.
For this reason, the court held that the amended versions are void and the original laws are once again in effect. This article first appeared here.
Michael Cardman is Senior Legal Editor at XpertHR. Michael has more than 20 years of experience in publishing and has specialized in employment law for more than 15 years. As a member of XpertHR’s editorial team, he focuses on wage and hour compliance, including minimum wage, overtime, employee classification, hours worked, independent contractors and child labor.
Would you like to comment?
HR Legal & Compliance Excellence presented by HR.com
August 2022
14
Submit Your Articles
Top Pick
What Should Be On Every HR Executive's Agenda NOW Important areas to watch out for in future
By Carrie B. Cherveny, Hub International
H
uman resources has a lot on its plate as employers and workplaces emerge from Covid-19 remote work arrangements. It has been about two years since many offices were filled with employees milling around, having lunch, and talking shop. Likewise, it has been some time since many HR professionals have had the opportunity to review many of their foundational documents, such as employee handbooks and related SOPs.
HR Legal & Compliance Excellence presented by HR.com
August 2022
What should be top of mind as HR returns to office? The U.S. Supreme Court is a good place to start.
1. Bostock v. Clayton County, Georgia 2020
The question in Bostock was whether Title VII of the Civil Rights Act of 1964 (Title VII) prohibits discrimination on the basis of sexual orientation and transgender status under sex-based discrimination. The Supreme Court answered with a resounding “yes”.
15
Submit Your Articles
What Should Be On Every HR Executive's Agenda NOW
The court stated, “An employer who fires an individual merely for being gay or transgender violates Title VII.” This finding has a far-reaching impact.
information-sharing effort to end retaliation in the workplace. Specifically, the Agencies stated: “The initiative will include collaboration among these civil law enforcement agencies to protect workers on issues of unlawful retaliatory conduct, educate the public and engage with employers, business organizations, labor organizations and civil rights groups in the coming year.”
Fundamentally, employers should be updating their employee handbooks to be sure that they prohibit harassment, discrimination, and retaliation on the basis of sexual orientation and transgender status (among other protected classes). Likewise, employers should be training their managers and employees regarding their rights and obligations under Title VII (among other employment laws). However, this court decision goes further than the employee handbook.
The agencies have developed a memorandum of understanding formalizing the cooperative effort to enforce related laws and protect workers’ rights. This means that it is possible for one agency (such as the DOL) to engage in an investigation and based on its findings, share information with another agency (such as the EEOC or NLRB), which may trigger a second investigation from the additional agency.
Title VII prohibits discrimination with respect to “compensation, terms, conditions, or privileges of employment”, which includes employee benefits. It is clear that Title VII prohibits discrimination in the offer of coverage. However, were you aware that it may also apply to the actual plan design and coverages/ exclusions in the insurance plan itself? On June 6, 2022, a Middle District Court in Georgia found that an employer’s health plan that excluded coverage for transgender medical, surgical, and psychological services violated Title VII. In Lange v. Houston County Georgia, the employee sued her employer for the failure of the group health insurance to cover her transgender medical, surgical, and psychological services.
The core focus of this collaboration is to combat retaliation in the workplace. Therefore, as employers update their handbook, they should also pay special attention to their complaint procedures and antiretaliation policies. Employers may want to consider offering a hotline to employees providing a neutral avenue for complaints. Likewise, training is incredibly important. Ensuring that your managers and decision makers understand what may constitute retaliation and their obligations is an essential component of any retaliation prevention program.
The court found that [d]enying healthcare coverage “because of” sex unquestionably violates Title VII because those benefits are “compensation, terms, conditions, or privileges of employment” under the act.
3. Covid National Emergency and EEOC Direct Threat
Back in 2020, when WHO declared Covid-19 a pandemic and the EEOC declared it a “Direct Threat” employers Covid-19 medical inquires became subject to the ADA “direct threat” standard.
This means that employers should not only update their employee handbook, but likewise should review their employee health insurance exclusions and consult with their broker and outside counsel.
During a pandemic, ADA-covered employers may ask employees if they are experiencing symptoms of the pandemic virus. Why was this allowed? Because employers may request information to determine whether an employee may perform his or her essential job functions without posing a direct threat. However, employers are also prohibited from asking
2. Federal Agency Activity
In November 2021, the Department of Labor (DOL), the Equal Employment Opportunity Commission (EEOC), and the National Labor Relations Board (NLRB) (collectively the agencies) announced a joint
HR Legal & Compliance Excellence presented by HR.com
August 2022
16
Submit Your Articles
What Should Be On Every HR Executive's Agenda NOW
professionals will have to unravel many of their Covid medical screening processes.
employees about their Covid-19 symptoms, if they are not coming into the workplace or attending live work-related meetings (such as a client lunch or conference).
Employers will no longer be able to engage in medical surveillance of Covid-19 for general health and safety purposes. For example, employers will no longer be able to screen employees for Covid-19 symptoms or take the temperatures of employees entering the workplace or attending workplace functions.
However, even in a pandemic and under a direct threat, employer inquiries remain limited to information regarding whether the employee poses a direct threat. This means, for example, an employer may not request an employee’s complete medical record because the records are likely to contain information unrelated to whether the employee can perform his or her essential functions without posing a direct threat.
Likewise, employers will no longer be able to conduct Covid-19 testing or seek the results of Covid-19 tests as a condition of attending work. In many cases, this also means retraining HR professionals, who may have joined the profession during the Covid-19 pandemic and have not operated under the more traditional (non-Direct Threat) ADA medical inquiry rules.
4. Post Pandemic
It has been more than two years since the declaration of a “direct threat”. During this time, HR departments have updated technology, policies, protocols, and processes to include Covid-19 symptom questionnaires.
5. Multistate Challenges a. Marijuana state laws The legalization of marijuana across the U.S. vary greatly by state. The differing rules and obligations
When Covid-19 is no longer a pandemic and the EEOC removes the “Direct Threat” declaration, HR
HR Legal & Compliance Excellence presented by HR.com
August 2022
17
Submit Your Articles
What Should Be On Every HR Executive's Agenda NOW
across the U.S. create significant complexity for multi-state employers. For example, in some states, the failure to accommodate an employee who uses marijuana for medical purposes may be a violation of state disability laws. Conversely, in other states, employers have no obligation to accommodate employees who use medical marijuana and employees have no private right of action. For instance, on March 30, 2021, New York laws began prohibiting employers from taking any action against someone for using recreational marijuana when not working. Conversely, as of April 12, 2021, New Mexico passed a medical marijuana law that affords several protections to employers and does not provide employment protections to recreational users. This makes developing a “one size fits all” drug-free workplace policy virtually impossible. The current labor shortage adds to the complexity. HR and recruiters are under tremendous pressure to find and retain talent. Employers may be tempted to eliminate THC from their drug screening protocols.
(Colorado (2024), Delaware (2026), Maryland (2025), and Oregon (2023)). Compounding this complexity, there are 18 states with paid sick or earned leave time requirements and 23 cities and counties with paid sick leave requirements. Multistate employers are constantly challenged to remain up to date in both their practices and their policies. Having solid multi-state compliance resources is imperative. There are a wide array of resources available to employers to assist with multistate compliance including law firms, consulting firms, and online subscription tools. This article encompasses only some of the hottest topics for HR today – in addition to the ongoing foundational HR obligations including training, audits, and HR operations. The bottom line – the HR profession is increasingly complex and is essential for every organization. If you see an HR person today, say thank you. It’s been a long few years.
Carrie B. Cherveny is Chief Compliance Officer and Senior Vice President of Employment Solutions at global insurance brokerage Hub International. She has 20 years of combined experience in employee relations working on the management side providing human resources, employment law, and employee benefits legal guidance.
However, in some states allowing the use of marijuana may jeopardize the employer’s workers’ compensation coverage – especially for safety-sensitive positions. Employers should speak with outside counsel, their broker, and their workers’ compensation carrier before making any changes to their drug testing programs (including those that are specifically designated as a drug-free workplace).
Would you like to comment? b. Sick leave and paid leave Another state-based complexity includes time off and paid leave rules. States (along with some counties and municipalities) have been actively engaged in passing mandatory paid time off laws. For example, there are now eight states plus the District of Columbia and Puerto Rico with paid medical/paid family leave benefits currently in effect (California, Connecticut, District of Columbia, Hawaii, Massachusetts, New Jersey, New York, Puerto Rico, Rhode Island, and Washington). Moreover, There are an additional four states who have passed legislation with benefits effective in the future
HR Legal & Compliance Excellence presented by HR.com
August 2022
18
Submit Your Articles
Top 5 Reasons To Optimize Your Remote Work Policy Ensuring employees do not hop from place-to-place By Todd R. Wulffson and Mark S. Spring, Carothers DiSante & Freudenberger, LLP
M
any workplaces allow employees to work from home. However, often in those situations, the employer does not know from where the employee is working. Recently, one of our firm’s small business clients, based in an employer-friendly state in the south, had an employee move to California without the company knowing. Neither management nor HR was aware that it had an employee in California. This ended up causing some material issues when it came to daily overtime, taxes, and other issues.
HR Legal & Compliance Excellence presented by HR.com
August 2022
If you have employees working from home (WFH), you should strongly consider implementing a policy that provides that (a) WFH employees cannot work in another state or country for more than thirty (30) days without advanced written approval, and (b) that the exact location of all work performed remotely needs to be communicated to the HR department in writing.
19
Submit Your Articles
Top 5 Reasons To Optimize Your Remote Work Policy
There are many reasons for this: 1. You want to know where the employee is working in case they are injured and to assist in tracking any related WFH expenses. Being injured while WFH is a workers’ compensation event. In addition, you do not want to have employees, who are working in an unsafe environment. 2. The laws of every state are different. For example, an employee working in Arizona is required to be paid overtime rates only if he or she works over forty hours in a week. If that employee moves to Nevada, he or she must be paid premium overtime rates for all hours worked in excess of eight hours in a day, even if he or she does not meet the forty-hour weekly threshold. Even within California, many cities and municipalities now have their own minimum wage and sick leave ordinances. It is difficult enough to be in compliance with applicable laws when you know where your employees work. If you do not know where your employee is working, it is virtually impossible to be in compliance with the relevant state and local laws.
HR Legal & Compliance Excellence presented by HR.com
August 2022
20
3. If an employee is working outside of California more than occasionally, you may be able to avoid paying them daily overtime. In addition, many states do not have the onerous meal and rest period requirements dictated by California wage and hour law. Finally, your duties to reimburse employees for expenses incurred may be narrower in other states. Thus, you may be able to save significant labor costs in many instances if employees are out of state. However, if you are not made aware where they are working, you will not be able to take advantage of these potential savings. Most other states require payroll taxes to be paid if an employee is working in their jurisdiction for more than a specified period of time. The employer may also owe income taxes to the state where the employee is temporarily working, which must be timely withheld by the employer. In our recent case where the employee moved to California without the knowledge of the employer, discussed above, this was an issue because the employer did not know the employee had moved and was not deducting payroll taxes and submitting them to the California EDD.
Submit Your Articles
Top 5 Reasons To Optimize Your Remote Work Policy
Other countries - particularly EU ones - may consider a resident employee to qualify for vacation, severance, and other benefits, even if the employee is not permanently residing in that country. As the employer, your company may become liable for such benefits after even 60+ days. It is important to know when your employees are working abroad for any extended period.
Based on some interesting experiences, since WFH arrangements have become so prevalent, we recommend that California employers strongly consider adding written notification requirements to their WFH policies requiring employees to notify the employer, in writing, where they are working if they are working somewhere new for a period of at least thirty days.
When there is no written policy, the employee can persuasively argue that he or she was not aware that notification was required. Having a mandatory written notification policy gives you a better likelihood that you will be timely made aware of your WFH employees’ moves to help you control labor costs and try to ensure compliance. In addition, if the employee fails to notify you, and there is a written policy requiring written notification, you will have a stronger argument that you did not willfully violate the other state or country’s laws.
In addition, employers should also have other, more traditional, provisions in their WFH policies, such as provisions addressing use and privacy of electronic devices and equipment, security of data, safety, and expense reimbursement rules. Finally, WFH employees should be required to sign documents acknowledging their notice of these policies, whenever they are issued or modified. This article originally appeared here.
Todd R. Wulffson is Managing Partner in the Orange County office of Carothers DiSante & Freudenberger LLP. Todd has 25 years of experience counseling and defending businesses in labor and employment issues and has extensive experience representing employers across the entertainment, manufacturing, banking, hospitality, financial services, and retail industries. He focuses on issues related to human resources, and the implementation of proactive measures to reduce risk and cost including substantial experience in the evolving area of Social Media Law.
Mark S. Spring is the Office Managing Partner & Chair of CDF Labor Law LLP’s Traditional Labor Law Practice Group. Mark has almost 30 years of experience handling labor and employment law matters throughout Northern California. His practice is focused on representation of management in union-management relations and handling litigation triggered by all types of employment related disputes.
Would you like to comment?
HR Legal & Compliance Excellence presented by HR.com
August 2022
21
Submit Your Articles
HRCI & SHRM ®
®
CERTIFICATION PREP COURSES GROUP RATES AVAILABLE
For HR Professionals
For Your Organization
Show that management values the importance of the HR function, and has a commitment to development and improvement of HR staff.
Certified HR professionals help companies avoid risk by understanding compliance, laws, and regulations to properly manage your workforce.
Ensure that each person in your HR department has a standard and consistent understanding of policies, procedures, and regulations.
HR Professionals lead employee engagement and development programs saving the company money through lower turnover and greater productivity and engagement.
Place your HR team in a certification program as a rewarding team building achievement.
HR.com/prepcourse
A skilled HR professional can track important KPIs for the organization to make a major impact on strategic decisions and objectives, including: succession planning, staffing, and forecasting.
CALL TODAY TO FIND OUT MORE 1.877.472.6648 ext. 3 | sales@hr.com
11. Less expensive than a masters or PhD program, and very manageable to prepare with 2. 2
legislation and best practices
3. 3 Recognized, Industry benchmark, held by 500,000+ HR Professionals
Group Rate Options We offer group rates for teams of 5+ or more for our regularly scheduled PHR/SPHR/ SHRM or aPHR courses. For groups of 12+, we can design a more customized experience that meets your overall length of the course. Groups rates for HRCI exams are also available as an add-on. All group purchases come with 1 year of HR Prime membership for each attendee to gain the tools and updates needed to stay informed and compliant.
CALL TODAY TO FIND OUT MORE 1.877.472.6648 ext. 3 | sales@hr.com | HR.com/prepcourse
Top Pick
EEOC’s New Workplace Covid-19 Testing Rules: 7 Takeaways For Employers Key changes employers need to make
By Myra K. Creighton and Aymara Ledezma, Fisher & Phillips, LLP
E
mployers that continue to test workers for Covid-19 should review their policies to ensure they comply with updated guidelines released by the Equal Employment Opportunity Commission (EEOC).
the agency said you can continue to administer viral tests as a condition of entering a worksite, so long as you can show your testing practices are job-related and consistent with business necessity.
In prior guidance, the EEOC broadly allowed employers to screen workers for Covid-19 without running afoul of the Americans with Disabilities Act (ADA) due to the state of the pandemic. In revised guidelines, however,
The July 12 update “makes clear that going forward employers will need to assess whether current pandemic circumstances and individual workplace circumstances justify viral screening testing of
HR Legal & Compliance Excellence presented by HR.com
August 2022
24
Submit Your Articles
EEOC’s New Workplace Covid-19 Testing Rules: 7 Takeaways For Employers
and the transmissibility of current Covid-19 variants, the accuracy and speed of processing different types of Covid-19 viral test, as well as employees’ vaccination status, working conditions, and the potential impact of positive cases on operations.
employees to prevent workplace transmission of Covid-19,” the EEOC said. What do you need to know about the latest guidelines? Here are seven key takeaways.
1. Mandatory Covid-19 Screening Is Still Permissible if Certain Criteria Are Met
Under the ADA, a Covid-19 viral test is considered a medical examination, which means an employer that requires such testing for employees to enter or remain onsite must ensure that Covid-19 testing is “job-related and consistent with business necessity.” This is consistent with the EEOC’s pre-COVID guidance about subjecting employees to medical examinations. In that guidance, the EEOC said an employee medical examination may be job-related and consistent with business necessity when objective evidence shows that the employer reasonably believes that either the employee’s ability to perform essential job functions will be impaired by a medical condition or the employee will pose a “direct threat” – meaning a significant risk of substantial harm – to themselves or others. In the EEOC’s latest guidance, the agency listed the factors you should consider when evaluating whether your testing program is job-related and consistent with business necessity: community transmission levels
HR Legal & Compliance Excellence presented by HR.com
August 2022
25
You should also review guidance from the Centers for Disease Control and Prevention (CDC), the Food and Drug Administration (FDA), and state and local public health authorities. The EEOC cautioned, however, that “CDC and other public health authorities periodically update and revise their recommendations about Covid-19 testing, and FDA may revise its guidance or emergency use authorizations based on new information and changing conditions.” Therefore, you should regularly check for updates from the relevant government agencies before implementing a Covid-19 testing protocol or if you already have one in place.
2. Antibody Tests Are Not Permitted as a Condition of Re-Entering the Workplace
Antibody tests are still not considered a good measure of whether an individual has a current Covid19 infection and should not be used to determine whether an employee can return to the workplace. While a viral test detects whether someone is infected with SARS-CoV-2 (the virus that causes Covid-19), an
Submit Your Articles
EEOC’s New Workplace Covid-19 Testing Rules: 7 Takeaways For Employers
antibody test measures proteins, which may indicate if an employee had a past infection but should not be used to diagnose a current infection.
would meet the ADA’s requirement to be job-related and consistent with business necessity due to the risk of Covid-19 transmission in the workplace and objective concerns about the employee’s ability to return to work.
Current CDC guidance notes that antibody testing does not establish whether an employee is immune to infection, and therefore, should not be used to determine whether an employee may enter the workplace.
“As a practical matter, employers may wish to consider other ways to determine the safety of allowing an employee to return to work if doctors and other healthcare professionals are unable to provide such documentation either in a timely manner or at all,” the EEOC said. “This might include reliance on local clinics to provide a form, a stamp, or an email to confirm that an individual is no longer infectious and is able to resume working.”
3. Covid-19 Screening Questionnaires Are Still Broadly Permitted
Employers are still allowed to ask all employees, who are physically entering a worksite, if they have COVID-19 symptoms or have been diagnosed with or tested positive for Covid-19, according to the EEOC. Symptoms include fever, chills, cough, and shortness of breath. Employers may exclude employees with Covid-19 or associated symptoms from the workplace because their presence would pose a direct threat to the health and safety of others, the agency said. Be aware, however, that employers generally cannot screen employees who work remotely or otherwise do not have in-person contact with co-workers, customers, or other business partners.
5. You May Screen Job Applicants for Covid-19 Symptoms
Under the EEOC’s ADA guidance, you are allowed to screen individuals with job offers for Covid-19 symptoms before they start work, but consistency is key. Such screening may be done after making a conditional job offer if you screen all employees in the same type of job, who are entering the worksite. Additionally, you may screen job applicants, who come onsite as part of the interview process if you screen everyone who enters the worksite, such as job applicants, employees, contractors, and visitors.
4. You May Require a‘ Return-to-work’ Confirmation from a Medical Professional If employees miss work because they tested positive for Covid-19, you can require them to provide a note from a qualified medical professional confirming that they may safely return to the worksite and are able to perform their job duties.
“The screening is limited to the same screening that everyone else undergoes,” the EEOC explained. “An employer that goes beyond that screening will have engaged in an illegal pre-offer disability-related inquiry and/or medical examination,” according to the agency.
However, you are not required to ask for a doctor’s note. Instead, you may opt to follow the latest CDC guidance or the applicable state or local public health guidance to determine whether an employee can safely return to the workplace once they have met isolation or quarantine criteria.
6. You Should Carefully Consider the Circumstances Before Withdrawing a Job Offer
The EEOC explained that requesting confirmation from a qualified medical professional is permitted under the ADA for two reasons. First, Covid-19 is not always considered a disability, so a request for confirmation may not be a disability-related inquiry. Second, if the request is considered a disability-related inquiry, it
HR Legal & Compliance Excellence presented by HR.com
August 2022
26
You may need a new hire to start working immediately. So, what options do you have if the worker tests positive for Covid-19, has symptoms, or has recently been exposed? If the new hire must report to a worksite or would otherwise be in the physical presence of others, you may be able to withdraw the job offer in some circumstances. Start by reviewing – and following – current CDC guidance that outlines when and how the worker can
Submit Your Articles
EEOC’s New Workplace Covid-19 Testing Rules: 7 Takeaways For Employers
assistance from excluding or denying individuals with disabilities an equal opportunity to receive program benefits and services;
safely end isolation or quarantine, enter a worksite, or work in the physical presence of others. When following current CDC guidance to address the worker’s specific circumstances, the EEOC said you may withdraw the job offer if:
●● Title VII of the Civil Rights Act, which prohibits discrimination based on race, color, national origin, religion, and sex (including pregnancy, gender identity, and sexual orientation); and
●● The job requires an immediate start date; ●● The CDC guidance recommends the person not be in proximity to others, and
●● The Age Discrimination in Employment Act, which prohibits discrimination based on age and covers workers who are 40 or older.
●● The job requires such proximity to others, whether at the workplace or elsewhere. The EEOC noted that the isolation or quarantine period may be short for some workers, and therefore, you may be able to briefly delay the start date or allow the new hire to telework if the job duties can be performed remotely.
Other federal laws, as well as state and local laws, may provide employees with additional protections. So, be sure to consult experienced legal counsel in your industry and geographic location for the latest updates.
Conclusion
The changes to the EEOC’s guidance are not meant to suggest whether testing is warranted, the agency noted. “Rather, the revised Q&A acknowledges that evolving pandemic circumstances will require an individualized assessment by employers to determine whether such testing is warranted and consistent with the requirements of the ADA.”
7. You Should Review Compliance with Other Employment Laws Employers that continue to test workers for Covid-19 should ensure compliance with additional employment laws beyond the ADA. The EEOC enforces other relevant anti-discrimination laws, including the following: ●● Section 501 of the Rehabilitation Act, which prohibits the federal government from discriminating in the employment context against qualified workers with disabilities. ●● Section 504 of the Rehabilitation Act, which prohibits recipients of federal financial
As the Covid-19 pandemic evolves, federal agencies will continue to update their guidelines for workplace safety protocols, and employers should review and potentially revise their policies and practices accordingly. This article first appeared here.
Myra K. Creighton is a Labor & Employment Partner at Fisher & Phillips, LLP.
Aymara Ledezma is an Associate at Fisher & Phillips, LLP.
Would you like to comment?
HR Legal & Compliance Excellence presented by HR.com
August 2022
27
Submit Your Articles
October 5 - 7, 2022 Nashville, Tennessee
Industry leaders will share their experience, vision, and innovations over three packed days in Nashville. Join them at an event filled with fun, parties, networking and collaboration!
Inspiring keynotes · Educational sessions, panels and workshops for industry thought leaders · Intimate round table discussions with hot topics ·1 on 1 meetings with partners and key suppliers · Guided market tours · Product demos
2022 SPEAKERS
Marshall Goldsmith Executive Coach Top Ten Business Thinker
Author/Editor
Melanie Tinto CHRO
Wex
Courtney McMahon
Linda Cai
Beverly Troxtell
Head of HR Change Management & HR Evolution
Vice President of People Analytics
Colgate Palmolive
Nikita Steals
Head of Talent Acquisition
Head of Talent Development
PayPal
Dave Sachs
Ryan McCrea
Northwestern Mutual
Atlassian
Senior Director People Analytics and Data Science
Capital One
Head of Learning & Development
SAVE UP TO $750 Get your conference pass for as low as $300 HR Legal & Compliance Excellence presented by HR.com https://www.hr.com/InspireHR-attend
hr.com/InspireHR-attend
August 2022
28
REGISTER NOW
Submit Your Articles
IMAGINE THE POTENTIAL OF HR AND YOU! 2022 TOPICS TALENT ACQUISITION
DIGITAL TRANSFORMATION
SKILL DEVELOPMENT
TALENT MANGEMENT
EMPLOYEE EXPERIENCE & WELLBEING
LEADERSHIP & BEING THE BEST LEADER POSSIBLE
SPONSORS & EXHIBITORS
SAVE UP TO $750
Bring your team! Group pricing is available. Contact CorporateEducation@hr.com for more information. HR Legal & Compliance Excellence presented by HR.com https://www.hr.com/InspireHR-attend hr.com/InspireHR-attend
August 2022
Get your conference pass for as low as $300 29
REGISTER NOW
Submit Your Articles
Remote Work: Protected Leave And Workers’ Compensation Considerations for employers with remote workers By Nicolas K. Ball, Barran Liebman, LLP
A
s employers adapt to the post-pandemic economy, many are finding that remote work is here to stay. Here is how employers can ensure they are prepared for the unique challenges that remote work poses.
Q: I have a remote employee who asked to take leave, and we are willing to provide it. Does it matter what we call it? Your company may be happy to grant this employee leave,
no questions asked. However, ensuring that the employee’s leave is properly classified will negate a number of problems that could arise down the road. If the employee is taking leave for their own medical condition or that of a close family member, they may be entitled to leave under the Family Medical Leave Act (FMLA). Until the leave is designated as FMLA leave, the employer cannot count the employee’s time off against the employee’s 12-week FMLA entitlement. The employer may not mind granting this first leave request, but may find that their patience runs thin as additional leave requests roll in with no real end in sight. Further, the news that a later leave request is subject to FMLA protections because earlier leave was not designated as FMLA is never welcome news.
HR Legal & Compliance Excellence presented by HR.com
August 2022
30
Submit Your Articles
Remote Work: Protected Leave And Workers’ Compensation
States also vary in allowing claims for at-home injuries. For example, if an employee is walking their dog mid-shift and falls, will their injury be covered? The answer may vary from state to state. Employers should proactively confirm that their workers’ compensation coverage is valid within the jurisdictions where their employees are working from to ensure that policies and coverage are compliant with the laws in those jurisdictions. A strong remote work policy also may help you proactively identify where an employee is working and where they may file a claim upon injury. This article first appeared here.
An employee’s medical leave may also be protected under various state laws. State laws interact in numerous ways with FMLA. For example, leave protected under both the Oregon Family Leave Act and FMLA will run concurrently. If a covered employer does not designate the leave correctly under federal and state law, the employee may be entitled to additional state law leave too.
Q: A remote employee has claimed an injury and is filing a workers’ compensation claim in the state where they live, not the employer’s home state. What should I do?
When a remote employee is injured, the employer’s first priority (other than the injury itself) should be to identify the jurisdiction in which the worker’s claim arises.
The employer needs to confirm whether it has coverage in the state where its worker is claiming an injury. While many employers carry national policies, some states disallow employers from obtaining third-party insurance (such as Washington), requiring employers to self-insure or purchase coverage through a state fund. An employer that does not carry proper state coverage may face penalties related to failure to cover an employee and perhaps failure to provide an employee with information on their rights and how to file claims in the jurisdictions they are working from. An employee may file their workers’ compensation claim in the employer’s home jurisdiction or the employee’s, and no policy can control this choice.
HR Legal & Compliance Excellence presented by HR.com
August 2022
31
Nicolas K. Ball is an Attorney at Barran Liebman LLP. Nick represents employers in both Oregon & Washington, and in addition to his employment practice, has management-side expertise in workers’ compensation.
Would you like to comment?
Submit Your Articles
TOP PICK
Michigan LGBTQ: Sex Discrimination Law Includes Sexual Orientation Learn what Michigan Supreme Court's new landmark ruling means By James F. Hermon and Robert A. Boonin, Dykema
O
n July 28, 2022, the Michigan Supreme Court issued its opinion in Rouch World, LLC v. Department of Civil Rights, finding in a 5-2 decision that Michigan’s Elliott-Larsen Civil Rights Act (ELCRA) protects against discrimination based on gender identity and sexual orientation. While so holding, the court overturned a precedent set nearly 30 years ago by the Michigan Court of Appeals in Barbour v. Department of Social Services. That court had relied upon then analogous federal precedent in holding that the same statute did not extend protection on the basis of sexual orientation, as “sex” in the context of ELCRA meant only “gender discrimination, not discrimination based on sexual orientation.” The decision to overturn Barbour was not particularly surprising given the United States Supreme Court’s 2020 ruling in Bostock v. Clayton Co., which held that the proscription against sex-based discrimination in Title VII of the Civil Rights Act of 1964 protected against discrimination based upon gender identity or sexual orientation.
HR Legal & Compliance Excellence presented by HR.com
August 2022
32
Submit Your Articles
Michigan LGBTQ: Sex Discrimination Law Includes Sexual Orientation
change for most Michigan employers. After all, Title VII already prohibited employers with 15 or more employees from discriminating on the basis of gender identity or sexual orientation under the Bostock decision.
While the Michigan Supreme Court recognized that lower courts in Michigan had been bound to follow the Barbour doctrine, it held that it was not similarly constrained from addressing the issue. Because all of the opinions relied on by the Barbour court had been overruled over the course of the intervening decades, the court concluded that the Barbour doctrine’s precedential value had waned, particularly in the face of persuasive reasoning on this issue from the United States Supreme Court in Bostock.
However, smaller employers, with 14 employees or fewer, were not bound by the same restrictions. Accordingly, those Michigan employers should take steps to train supervisors and management on the law’s new requirements to avoid future liabilities and to change handbooks and policies to reflect the law’s newly found meaning.
Indeed, in making its decision the Michigan Supreme Court echoed the rationale of the Bostock Court. Extensively quoting Bostock, the court held that an individual is discriminated against on the basis of sex when traits that would be tolerated when exhibited by persons of one sex (such as attraction to men) are not tolerated when exhibited by persons of the other sex. In other words, an employer that terminates a male employee because that employee is attracted to other males is discriminating on the basis of the employee’s sex because that behavior is tolerated by female employees.
That training also should include training regarding harassment on the basis of sexual orientation and gender identity, as the definition of “sex” under ELCRA now extends the law’s protections in that area. Larger employers also should update their policies to make sure that they accurately reflect the scope of these LGBTQ-related protections under both state and federal law. This article first appeared here.
While this is an important decision under Michigan law, as a practical matter it does not represent a sea
A skilled labor and employment attorney and highly educated labor management scholar, Robert A. Boonin advises clients across the United States, including closely held companies, publicly traded corporations, local units of government, K-12 school districts, charter schools, community colleges, and state universities.
James F. Hermon is the Leader of Dykema’s Labor and Employment Practice Group. He provides fullcircle employment counsel, helping clients manage employer-employee relationships at all levels and meet their state and federal regulatory and statutory obligations. Jim advises on all aspects of the workplace.
Would you like to comment?
HR Legal & Compliance Excellence presented by HR.com
August 2022
33
Submit Your Articles
Remote Work: How To Ensure Secure Access To Information Addressing the big shift in what employees expect from their work environment By David Gentry, HID Global
W
In the U.S., remote workers are at 53% in 2022. Whereas, across Europe and the U.K. remote workers represent 52%, just 1% behind the U.S. While remote workers in Germany and France will account for 37% and 33%, respectively.
orking from home or remotely has been the norm for many in the last two years of the pandemic. How will we ensure a safe and flexible working environment for those returning to office and secure access to information for those working remotely? In this article, we deep dive into physical access trends, such as touchless solutions, data protection, user convenience and visitor management that will ensure the safety of both workers and security or IT professionals.
With the shift to remote work and the likelihood that more flexible work models will persist, security has evolved to zero-trust strategies and a focus on touchless technology, data protection, and increased convenience for users. This evolution includes leveraging integrated technologies that contribute to
Today, we are in the midst of Industry 4.0, where advances, such as machine learning and artificial intelligence are automating repetitive tasks, freeing workers to concentrate on higher-value problemsolving. Driven by the pandemic, we have seen a radical acceleration of changes that were already occurring. The pandemic also laid bare the inflexibilities and vulnerabilities within existing security architecture. The security and identity industry must evolve to meet emerging challenges and expectations of a workplace that is everywhere, now that the future of work is here. Remote working will vary in different parts of the world depending on IT adoption, culture, and industries. In 2022, 31% of all workers worldwide are remote with a mix of hybrid and fully remote.
HR Legal & Compliance Excellence presented by HR.com
August 2022
34
Submit Your Articles
Remote Work: How To Ensure Secure Access To Information
the health and safety of people and the security of data, no matter the location.
close to a reader for touchless access to doors, elevators and more.
Zero-trust strategies reflect the new reality of an office “perimeter” that is now anywhere and everywhere. “Never trust, always verify” is the new watchword as organizations seek to protect this virtual perimeter by cyber-hardening digital systems along with physical spaces. When accounting for every device on the network, from peripherals to access points, security implementations should include rigorous and uniform controls that don’t impede users as they go about their workday.
Mobile devices, likewise, can readily integrate with a visitor management solution, simplifying the credentialing process for administrators and end-users. Credentials can be delivered by email and downloaded to the device without face-to-face interaction with the front desk. With mobile, thousands of credentials can be issued remotely to users’ phones through a few mouse clicks, allowing tenants to walk straight into the building on a Monday morning.
The easiest approach for security teams and most convenient for users is when identities become the new perimeter. Each employee is given an identity and an identity-based access credential that, increasingly, can be used on a mobile phone. This defines how people enter workplaces and access the applications and services they need so they can do their jobs, while eliminating the hassle and vulnerabilities of remembering and entering passwords. With the zero-trust approach becoming a top trend dominating the security industry in 2022, leaders are tasked with ensuring a safe environment for those returning to the office – and secure identity and access management for those working remotely – are looking to the latest physical access trends and the best practices enabling them. Touchless solutions, data protection, and visitor management technologies are ensuring healthy and secure on-site environments while multi-factor authentication solutions take center stage for remote applications.
Solutions like these will also address the big shift in what employees expect from their work environment. Those who return to the office have a new mindset forged during a lengthy period of working from home. Some will want the same digital conveniences of their home environment. Others will need the assurance of touchless access, social-distancing, and hygiene measures that can only be efficiently managed through a tenant experience platform that integrates with beacon-based location services technologies and other automated solutions to these challenges.
This trend is also impacting tenants that are driving new ways to work that require the commercial real estate (CRE) industry to accommodate additional needs. They are offering their employees flexible, multi-location work styles that include work-from-home and in-office hot-desking. They want intuitive features and amenities that make their journey to and from the office easier. And the ubiquitous mobile phone has become the command center for their lives; a single device that consolidates both work and life, and can be simply tapped or held
HR Legal & Compliance Excellence presented by HR.com
August 2022
The benefits of mobile include a single device for access control and other integrations, a more seamless experience, and touchless functionality in support of health and safety. Integrations beyond physical access control support things like tenant engagement, logical access systems, and mobilefriendly access to building amenities. The trusted identities and mobile technologies underlying these experiences have also been used during the pandemic as part of location-based physical-distancing and contact-tracing solutions that make it easier to implement health and safety protocols, and to identify and mitigate Covid-19 outbreaks is and when they occur.
David Gentry is the SVP of Human Resources at HID Global.
Would you like to comment?
35
Submit Your Articles
n o i t a r
a c d i bl alen
u P e
C l ia
ing m o pc l & u d ga an e L w e ne s in HR h t out topic ence k c l Che ed HR Excel e them plianc Com
r o t Edi
1
Worker Classification
July 2022
2
Employee Data Safety
Aug 2022
3
Workplace Harassment
Sep 2022
4
HR and Intellectual Property
Oct 2022
5
Legal, Compliance and Employment Law
Nov 2022
6
HR Legal and Compliance 2023
Dec 2022
Check ePublications Editorial Calendar Here. Would you like to submit an article? | Write to us at ePubEditors@hr.com Submission Guidelines
TOP PICK
Building Equity Into Workplace Wellness Key things to consider while building an equitable workplace wellness program
By Dr. LouAnne Giangreco, WellRight
O
n the “severed floor” at Lumon Industries, employees seem to have perfected work-life balance. Thanks to a medical procedure, they can’t remember lives outside of work while in the office, and vice versa.
the workplace, just as what happens at work affects employees off the clock. And employers have embraced that, with many encouraging employees to bring their full, authentic selves to work.
While it’s an interesting premise raised by AppleTV’s thriller, Severance, we know that’s not how it is in real life. In reality, there is no such thing as a separate “work self”. What happens at home gets brought into
HR Legal & Compliance Excellence presented by HR.com
August 2022
A 2021 survey from the Simmons University Institute for Inclusive Leadership found that 90% of respondents agreed authenticity in the workplace is important.
37
Submit Your Articles
Building Equity Into Workplace Wellness
And those who could be authentic at work said they felt more confident, engaged, and happier overall.
They need different levels or types of support to achieve the same outcome.
To achieve those positive outcomes, employees first need to feel safe to bring their whole, authentic selves into work. That’s why organizations need to support their employees as the whole people that they are — so they can be their best, most authentic self, both inside and outside the workplace.
That’s why organizations need to build their workplace wellness programs on equity, not equality; giving individual employees the resources and opportunities that they need to reach an equal outcome. Until we build programs that are equitable for all, we can’t move the needle on wellness.
It’s possible by building wellness programs that address the six key dimensions of well-being through an equity lens. That way, all employees have the chance to achieve optimal outcomes.
Instead of making assumptions about what resources and opportunities employees will need to have successful outcomes, organizations need to gather quantitative data, about employee demographics, health needs from claims data, and other sources, as well as qualitative data through, for example, employee surveys and interviews with employee resource groups.
An Equitable Base
Most employee wellness programs today are built with equality in mind. That is, employers give all employees access to the same resources or opportunities.
Once that data is gathered, parsed through and understood, organizations can move on to building an equitable, whole-person wellness program.
But in the real world, people don’t start from the same place or bring the same life experiences to the table.
HR Legal & Compliance Excellence presented by HR.com
August 2022
38
Submit Your Articles
Building Equity Into Workplace Wellness
Every organization’s wellness offering will look a little different if they’re truly built on equity, because no two employee populations are the same. However, here are some things to consider within each dimension of whole-person wellness when it comes to building an equitable workplace wellness program:
access to healthy recipes and offering access to an on-site gym. But those recipes may not resonate with people from different cultural backgrounds, and the gym may not be open when night shift employees are on the clock. Organizations need to ask the right questions to make sure offerings are culturally appropriate and and accessible to all.
1. Emotional
6. Purpose
In addition to more traditional offerings like an employee assistance program (EAP) and insurance that covers behavioral health needs, a program built on equity would listen to employee feedback and potentially add tools to empower employees to take care of themselves and others, like emotional intelligence trainings, mentor programs, and peer support.
Purpose ties everything together; it’s our reason for being. Organizations need to meet people where they are and help support them in finding their purpose, so they can make positive changes and achieve optimal outcomes, both in the office and outside of it. There’s a reason Severance is listed as a thriller — it’s not natural to try to separate parts of our lives from each other. When workplace wellness programs support holistic wellness and allow equitable opportunities for all employees, they can feel safe and supported in bringing their whole, authentic selves to work.
2. Financial
Employees, depending on how they identify, are not starting from an equitable place in terms of financial health. The gender pay gap is real, for instance, and people with disabilities or who are part of the LGBTQ+ community have different financial needs because of structural factors and implicit bias. An equitable program would address those differences within the population.
LouAnne Giangreco, M.D., serves as the Chief Medical Officer of WellRight. She believes in the importance of empowering individuals in their health and well-being. This includes meeting individuals where they are at in their health and wellness journey and providing them with the tools for success. In addition, she served in leadership roles within a number of these facilities. She served as Chief Medical Officer for Five Star Urgent Care, a company providing urgent care, occupational medicine, and telemedicine services throughout Upstate New York. In addition, she served as the VP and Chief Medical Officer of Health Care Improvement for Excellus BlueCross Blue Shield.
3. Occupational
So much of diversity in the workplace is focused on hiring — getting diverse talent in the door — but what is missing is support for those diverse employees to continue growing and climbing the corporate ladder after they’re hired. Equitable wellness programs will focus on succession planning and give employees the tools they need to develop competencies and be successful.
4. Social
Aim to create a system that gives everyone the opportunity to be successful and build connections at work. That could be as basic as launching employee resource groups so people can connect over shared experiences. Or, it could include encouraging social consciousness through volunteer opportunities that resonate with the employee population.
Would you like to comment?
5. Physical
Traditional physical wellness offerings may include
HR Legal & Compliance Excellence presented by HR.com
August 2022
39
Submit Your Articles
Employee Data To Enhance Workplace Safety And Employee Productivity Better collaboration and intelligence are mandatory for a motivated workforce By Mike Steere, SaferMe
B
usiness awareness about the importance of mental well-being has grown significantly in recent years. With this focus, a closer connection between HR departments and the issues of worker safety and productivity has developed. While the improvements in understanding of mental well-being are positive, leading businesses are assessing a broader set of intelligence – personnel risk intelligence – for a more comprehensive approach. Personnel risk intelligence includes the analysis of information obtained from multiple data points about workers. The goal is to help understand and interpret how they experience working at a business. This approach also facilitates the identification and quantification of issues that are impacting
HR Legal & Compliance Excellence presented by HR.com
workers on a daily basis. These issues, if not identified early enough, can result in employee productivity problems, well-being issues, a negative perception of an employer, and, in a worst-case scenario, lead to a predisposition for on-the-job accidents. Taking a forward-looking approach to the field of personnel risk enables HR departments and businesses to get ahead of these problems before they develop into a larger issue and become costly to fix.
Optimizing Workplace Safety and Productivity The facts about worker risks and well-being paint a grim picture. The “Stress in America January 2021 Snapshot” study from
August 2022
40
the American Psychological Association (APA) reported four in five people are showing signs of “prolonged stress.” While there is a broad range of factors that contribute to this, these factors are often specific to each organization and the industry sectors in which they operate. This challenge of understanding unique circumstances drives companies to get access to better workplace data about their workers. The type of data companies analyzes to understand what affects the safety and productivity of their workers begins with basic safety and well-being metrics. In addition, evaluations of workers’ engagement with their job, their perception of work relationships, workloads – both physical and mental – and other questions about
Submit Your Articles
Employee Data To Enhance Workplace Safety And Employee Productivity
of the actions and strategies implemented. This is key.
Non-Invasive Proximity Analysis of Employees
But whether businesses actually have the data with which to glean those insights is an open question. In the last two years of Covid, many organizations struggled to accurately determine which employees had been in contact with each other, and who should be sent home to quarantine. Productivity and workplace motivation was impacted. Contact tracing was indeed in its infancy and useful data was hard to come by.
how they perceive their job are all considered. In many cases, this data is inconsistent and can carry internal biases – it is subjective data. To overcome this, high-performing organizations are looking to evidence-based frameworks for the collection and analysis of this data. Entrusting a trusted third party to perform this function provides several benefits. First, it enables the implementation of a standard, consistent framework for gathering and assessing objective data, negating internal biases. Second, it opens the opportunity to add further context to intelligence through industry benchmarking. Finally, it can drive increased engagement because staff feels comfortable knowing their data sits with an expert third party and will not be manipulated by management internally.
HR Legal & Compliance Excellence presented by HR.com
Once companies have this data, analyzing it using a standard framework based on a sound statistical methodology is the best way to gain accurate, deep and actionable intelligence. Individual factors can point to issues that could be causing issues with workplace productivity, safety, well-being or workers’ opinion of their employer. Patterns of these factors operating in combination can give even stronger indications of elevated risk in these areas. These insights should enable the organization to implement forward-looking actions and strategies to address the problems identified and reassure employees that the company has their best interests at heart. Measuring again at regular intervals will help assess the success
August 2022
41
As we have learned and understood more about Covid and pandemics, it has become clear that the non-invasive proximity analysis of employees holds significant value for businesses. The use of Bluetooth technology in a business setting helps gather data that, once interpreted, may be used to help defend the organization against continuity issues or productivity dips because of viral illnesses -particularly during pandemics. Companies can slow or stop the spread of a virus by accurately identifying close contacts of workers who test positive for the virus. Insights from this technologydriven intelligence can also identify where a higher risk for infection exists within an organization while maintaining worker privacy. Done the right way, proximity analysis and the intelligence it delivers not only slow or stop the spread of viral illnesses, but
Submit Your Articles
Employee Data To Enhance Workplace Safety And Employee Productivity
also boost workplace culture and employee confidence in coming to work during uncertain times. Proximity analysis and intelligence provide a visible indication that the employer is doing all it can to protect its workers, and that the workplace is safe. This capability becomes a critical component in the HR armory of capabilities to ensure that the company has a motivated and productive workforce.
Safety and Health Strategies Impact Employee Productivity Those data analysis and intelligence efforts, however, must operate within the broader context of the challenges organizations face.
HR Legal & Compliance Excellence presented by HR.com
As noted earlier, the rising awareness of mental well-being issues and how they impact workers highlights the connection between employee productivity and the employer’s workplace safety and health strategy. The issues of both absenteeism and presenteeism are where businesses often feel the impact of poor health and safety strategies. This is an enormous problem for American businesses, with one Harvard study estimating that absenteeism alone sucks $150 billion per year from the U.S. economy’s productivity. Over and above absenteeism and presenteeism, there
August 2022
42
is a range of everyday threats businesses need to face including economic, geopolitical, and supply chain concerns. Add to this the fresh experience of the impact viral illnesses have had on the health, safety, well-being, and productivity of workers and it becomes very evident that employers and HR departments face many challenges. It becomes clear that employers should be seeking to implement proactive, forward-looking intelligence programs to measure and analyze the personnel risk that exists in their organization. Understanding issues that are leading to elevated personnel risk, and proactively implementing strategies to address these issues, should be high on the priority list
Submit Your Articles
Employee Data To Enhance Workplace Safety And Employee Productivity
in the cooperative work – can transition to a more data-driven, future-focused understanding of personnel risk. This collaboration will form the strategic basis for an improved understanding of what holds workers back, and what can unlock greater well-being and performance. Ultimately, better collaboration and intelligence will lead to enhanced productivity in a safer and healthier work environment within a company that takes the initiative to proactively manage the risks impacting its human capital assets.
for human resources leaders as they look to improve productivity and maintain safety, well-being, and positive worker perception of their workplace.
warned, companies cannot say they ‘understand the risks and will be doing something about it’ and then do nothing.
To execute this, there must be an integrated approach that requires a strong collaboration between HR departments, health and safety leaders, operational risk managers, and operations managers. Executive engagement is vital as always, but there is plenty of value in gathering this type of forward-looking intelligence for both the C-level and boards can use data about personnel risk to increase their understanding of the organization and develop more future-focused decisions for the organizations.
The next data-driven evolution for HR departments? Build stronger intelligence about the factors impacting personnel risk in their organizations.
A commitment to identifying the issues that are affecting employees, and addressing them, is an extremely positive message to disseminate to staff. But be
HR Legal & Compliance Excellence presented by HR.com
Taking the First Steps
This transition is, arguably, already underway with mental well-being programs and some of the collaborative innovation that has occurred because of Covid-19 and its impacts on how we work. This shift is driving greater collaboration between HR, safety and operational management functions.
Mike Steere is a co-founder of SaferMe, one of the world’s leading contact tracing and safety software companies, with products used across more than 30 countries. Through the pandemic, he has worked with Fortune 500 businesses and other well-known international organizations, helping them to maintain productivity and continuity of operations.
Would you like to comment?
An organization that strengthens this collaboration – and prioritizes the collection and analysis of relevant data
August 2022
43
Submit Your Articles
Thank you for partnering with us!
Circa provides OFCCP compliance management and recruiting technology solutions to deliver qualified candidates on a level, equitable playing field for organizations.
Sterling, a leading provider of background and identity services, helps 47k+ global clients create people-first cultures and hire with confidence.
LEARN MORE
LEARN MORE
Advertise with Us
THANK YOU
EVERFI’s workplace training offerings empower employees to transform their organizations' workplace cultures with impactful, change-driven courses that go beyond compliance. LEARN MORE
VI RTUA L E VE N TS
UPCOMING
VIRTUAL EVENTS & HR.COM WEBCASTS
The State of Human Experience in the Workplace 2022
August 17, 2022
REGISTER
The Future of Talent Acquisition 2022
August 24-25, 2022
REGISTER
The State of Today’s HR Tech Stack 2022
September 7, 2022
REGISTER
W EBCASTS WEBCASTS
View our Upcoming Virtual Conference Schedule and Register Today!
Interview Right with Modern Hire’s Automated Interview Creator & Automated Interview Scoring - Demo Tech and the Employee Experience: Leveraging the Connection
HR Technology: Guesswork won’t cut it, you need data-driven decision making
Building Community, Regardless of Where Your Employees are Located
Essential Metrics for Great HR Leaders
www.hr.com/virtualconferences
August 3, 2022 11:00 AM - 12:00 PM ET August 11, 2022 3:00 PM - 4:00 PM ET August 16, 2022 1:00 PM - 2:00 PM ET August 17, 2022 10:00 AM - 11:00 AM ET August 18, 2022 1:00 PM - 2:00 PM ET
View our Upcoming Webcasts Schedule and Register Today!
REGISTER
REGISTER
REGISTER
REGISTER
REGISTER
www.hr.com/upcoming_webcasts
Publications
13 Targeted Publications to Reach Your Audience Informing, Educating, Enlightening and Assisting HR professionals in their personal and professional development, the Excellence series offers high-quality content through the publications!
Like to submit an article? Use our online submission form or for more information go to www.hr.com/ExcellencePublications