Pay Disclosure
Employers are required to provide applicants with the wage or salary range or rate for the position once they’ve completed an interview. The law doesn’t define “interview,” so we recommend providing it after the first interview, even if it’s just a phone screen.

If the applicant isn’t a current employee, you must provide the position’s compensation (rate or range) after their interview regardless of whether they request it. If the applicant is a current employee, you are required to inform them of the rate or range for the position upon request either after an interview or once you’ve offered them the position.

Salary History Ban
Employers may not ask about an applicant’s salary or wage history. If an employer does end up with that information, it can’t use the applicant’s salary or wage history to screen them out of the running or to set their compensation. “Wage or wage history” includes benefits and other compensation.

The salary history ban also prohibits employers from retaliating against an applicant (such as by refusing to interview, hire, or promote) if they don’t provide their wage or salary history. You may continue to ask applicants for their salary expectations.

Action Items
By October 1, 2021:

• If you don’t include compensation in your job postings, update your interview procedures to ensure that you provide the wage or salary range or rate after interviewing candidates.
• Train everyone involved in the interview process to steer clear of salary history questions and to disregard any information that is volunteered.
• Ensure that your application forms don’t ask for salary or wage history.

Nevada Pay Disclosure and Salary History Ban
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Employees are entitled to up to 2 hours of paid leave per shot. This leave is in addition to earned paid leave that became mandatory on January 1 of this year. You can require employees to provide up to 12 hours of notice before taking paid COVID vaccination leave.

Two other requirements to note: You must keep records regarding employees’ use of this leave for at least one year. In addition, you will need to display a poster once the Nevada Labor Commissioner creates it.

We recommend checking the Department of Business and Industry website periodically for updates.

Nevada Requires Paid COVID-19 Vaccination Leave
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Employers have been anticipating such guidance from the EEOC, and the Society for Human Resource Management’s president and CEO, Johnny C. Taylor, Jr., SHRM-SCP, recently requested that the EEOC provide guidance on vaccine incentives at an April 28 hearing.

The EEOC issued 21 updated FAQs on May 28. “The guidance notes that employers may request proof of vaccination status and that employers may offer incentives to encourage employees to obtain a vaccine or to provide proof of vaccination status,” explained John Lomax, an attorney with Snell & Wilmer in Phoenix. But employers should note that some limitations apply.

“Be mindful that this guidance is not legal advice or a one-size-fits all answer for every company on how to handle things,” said Adam Kemper, an attorney with Kelley Kronenberg in Fort Lauderdale, Fla. “Look at your current operations, the laws in your jurisdiction, as well as this guidance.” Guidelines, rules and employee sentiments will continue to change, he said, so companies should be prepared to adjust their policies as the pandemic plays out.

Here are some key takeaways for employers from the EEOC’s most recent guidance.

1. Explore Reasonable Accommodations

Businesses generally may require workers who enter a physical worksite to receive a COVID-19 vaccination, without running afoul of the federal workplace anti-discrimination laws that the EEOC enforces: the Americans with Disabilities Act (ADA), the Genetic Information Nondisclosure Act (GINA) and Title VII of the Civil Rights Act of 1964. However, employers must consider reasonable accommodations for workers who refuse a vaccine for religious or disability-related reasons, unless such accommodations pose an undue hardship on the employer’s operations.

The EEOC specifically addressed pregnancy-related accommodations in its most recent guidance. Patrick Dennison, an attorney with Fisher Phillips in Pittsburgh, said a pregnant employee may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave, to the extent such modifications are provided for other employees who are similar in their ability or inability to work.

He noted that an employee does not need to cite EEO laws or use the phrase “reasonable accommodation” to prompt an employer to engage in an interactive dialogue to explore accommodations. But an employee who opts not get vaccinated for a protected reason must let the employer know that he or she needs an exemption or work adjustment.

“As a best practice, before instituting a mandatory vaccination policy, employers should provide managers, supervisors and those responsible for implementing the policy with clear information about how to handle accommodation requests related to the policy,” the EEOC said.

2. Carefully Consider Incentives

“Importantly, the EEOC confirmed that employers may, indeed, offer incentives to employees receiving vaccines,” observed Jason Habinsky, an attorney with Haynes and Boone in New York City. “However, there are some differences an employer must understand depending on whether an employee received the vaccination on his or her own or through the employer.”

Requesting proof that employees received a vaccination on their own is not a disability-related inquiry under the ADA, and therefore an employer may offer an incentive to employees to provide such proof, according to the EEOC.

If an employer administers the vaccination to its employees or contracts with a third party to administer the vaccinations, then any incentive the employer offers with the vaccination must not be so substantial as to be coercive. “The reason for this rule is because administering the vaccine requires prescreening medical questions that are prohibited under the ADA unless the medical questions are voluntary,” explained Tina Bengs, an attorney with Ogletree Deakins in Valparaiso, Ind. “If the incentive is too substantial, then answering the medical screening questions would not be considered voluntary.”

The EEOC underscored that “a very large incentive could make employees feel pressure to disclose protected medical information.”

Unfortunately, the agency did not provide examples or bright-line tests for what might be considered coercive, Lomax noted. So employers have more latitude on incentives if they merely request a voluntary confirmation that the employee received a vaccination from an outside provider.

“An employer will be forced to engage in some tight-rope walking for the time being,” Habinsky said. “Without further guidance, the safest course would be for an employer to determine the measures which will just cross the line of actually incentivizing employees but without being too generous.” For example, gift cards and small bonuses may be appropriate.

Bengs said the best strategy for most employers is to “keep it simple.”

Another important takeaway from the guidance is that employers may offer incentives—without violating GINA—to employees who provide proof that a family member received a vaccination from an outside provider. Critically, however, an employer may violate GINA if it offers an incentive to employees when a family member gets the vaccination from the employer instead, Habinsky noted.

3. Beware of Disparate Impact

Even though mandatory vaccination policies may be permissible, employers should be mindful of any disparate impact that a mandate may have on particular groups of employees, Kemper noted.

“Disparate impact” means that a seemingly neutral policy is discriminatory in practice based on age, national origin, race, color, religion, sex or another protected category.

“Employers should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement,” the EEOC cautioned.

4. Treat Vaccination Records Confidentially

The ADA requires employers to keep employee medical information confidential. The EEOC’s guidance confirms that even though requesting proof of vaccination is not a medical inquiry, the information that the employee provides about vaccination status, such as a copy of a vaccination card, is considered medical information that must be maintained confidentially in a file separate from an employee’s regular employment file, Bengs explained.

Practical Tips

As employers create and revise their vaccine-related policies, Dennison said, they should make sure the language used adequately reflects the employer’s intent and makes certain whether the employer is making the vaccine mandatory or voluntary, since the EEOC has made it clear that voluntary vaccination policies do not carry the same restrictions as mandates.

All vaccine policies should include clearly defined procedures for providing reasonable accommodations for those who cannot get vaccinated because of medical or religious reasons, he added. “Furthermore, if employers plan to provide incentives, a best practice is to make the incentive voluntary and tied solely to the employee’s proof of vaccination. Employers with voluntary vaccine policies should also steer clear of any entanglement with vaccine providers in any way which could make them an agent of the employer.”

Employers also should note that the Occupational Safety and Health Administration and state and local authorities may have different requirements.

4 Takeaways from the EEOC’s Latest Guidance on COVID-19 Vaccines
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COBRA Subsidy: What Employers Need to Know

COBRA Subsidy: What Employers Need to Know
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What are the FMLA Forms?

The FMLA regulations require that employers provide certain notices to employees. The DOL has created model forms to meet those notice requirements. The regulations also allow employers to request certain information from employees to substantiate the reason for FMLA leave. The DOL has created model forms for that purpose.

Below is a list of the DOL model FMLA notices and forms:

• General Notice (the FMLA poster)
• Notice of Eligibility & Rights and Responsibilities (WH-381)
• Designation Notice (WH-382)
• Certification of Health Care Provider for Employee’s Serious Health Condition (WH-380-E)
• Certification of Health Care Provider for Family Member’s Serious Health Condition (WH-380-F)
• Certification for Military Family Leave for Qualifying Exigency (WH-384)
• Certification for Serious Injury or Illness of a Current Servicemember for Military Caregiver Leave (WH-385)
• Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave (WH-385-V)

What Has Changed from Prior Versions?

The purpose of the revised forms, according to the DOL, is to make them easier to understand. Looking at what has changed from prior versions makes that purpose clear.

Notice of Eligibility & Rights and Responsibilities

The new model Notice of Eligibility & Rights and Responsibilities is organized into three sections: Section I – Notice of Eligibility, Section II – Additional Information Needed, and Section III – Notice of Rights and Responsibilities.

Section I – Notice of Eligibility asks employers to provide more detail for why an employee is not eligible for FMLA (i.e. they have not been employed for 12 months or haven’t met the 1,250 hours of service requirement). Section III – Notice of Rights and Responsibilities is broken down into six subparts covering leave entitlement, substitution of leave, maintaining health benefits, other employee benefits, return-to-work requirements, and other requirements. Most notably, employers are required to clarify whether FMLA leave will run concurrently other types of leave (i.e. workers’ compensation, disability leave, or state-mandated leave).

Designation Notice

Similar to the Notice of Eligibility & Rights and Responsibilities, the new model Designation Notice is organized into three sections: Section I – Employer, Section II – Additional Information Needed, and Section III – FMLA Leave Approved.

The most notable change to the form is the inclusion of a new section on Incomplete or Insufficient Certification. This section asks the employer to explain what information is needed for a complete and/or sufficient certification. This new section may mean that an employer needs to provide multiple designation notices — once to note the incomplete or insufficient certification and again when a complete certification is provided and leave is approved.

Certification from Health Care Providers

The changes made to the certification forms require healthcare providers to more clearly identify the medical condition and amount of leave required. Healthcare providers are asked to provide a best estimate on the duration of the condition; an attempt to discourage the use of “lifetime,” “unknown,” or “indeterminate” in explaining duration of the condition. The purpose of this change is to make the certification easier to complete for healthcare providers and easier for employers to evaluate without having to ask the healthcare provider for clarifying information.

Should You Use the New Forms?

The law does not require that employers use the model notices and forms provided by the DOL. Use is optional. However, there are reasons for using the model forms.

The main reason many employers choose to use the DOL-provided forms is that they eliminate the potential of leaving out required information or requesting more information than is allowed. The FMLA regulations are very specific on what information needs to be provided to employees and what information can be requested by employers. Even if you decide to create your own forms or continue using the ones you have already created, you should review the new forms to ensure you have included everything that is needed and nothing that isn’t.

With the format of the new forms, it is easier to understand what is needed and required. The simple wording, clearer definitions, and use of checkboxes makes it more likely that the forms will be completed correctly and fully. That means employers are getting the information they need to administer FMLA leave, employees understand what their rights and obligations are, and healthcare providers provide more complete and accurate information.

FMLA can be difficult to administer. The new forms strive to make it a little bit easier.

NEW FMLA FORMS AND WHY YOU MIGHT WANT TO USE THEM
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OPTIONAL EXTENSION OF SICK AND FAMILY LEAVES
Part of ARPA is an extension of the current tax credit scheme for Emergency Paid Sick Leave (EPSL) and Emergency Family and Medical Leave (EFMLA) under the Families First Coronavirus Response Act (FFCRA). The FFCRA required many employers to provide EPSL and EFMLA in 2020, but became optional when it was previously extended to cover January 1 through March 31, 2021.

The new extension under ARPA takes effect April 1, 2021, and lasts through September 30, 2021. Like the current version, it remains optional. In addition, tax credits are available but only to employers with fewer than 500 employees and up to certain caps. To receive the tax credit, employers are required to follow the original provisions of the FFCRA. For example, they can’t deny EPSL or EFMLA to an employee if they’re otherwise eligible, can’t terminate them for taking EPSL or EFMLA, and have to continue their health insurance during these leaves.

Emergency Paid Sick Leave (EPSL) Changes
Here are the key changes to EPSL, in effect from April 1 through September 30, 2021:

• Employees can take EPSL to get the COVID vaccine and to recover from any related side effects.
• Employees can take EPSL when seeking or waiting for a COVID-19 diagnosis or test result if they’ve been exposed to COVID-19 or if the employer has asked them to get a diagnosis or test. (Previously, time spent waiting on test results was not necessarily covered, which seemed like an oversight.)
• Employees will be eligible for a new bank of leave on April 1. Full-time employees are entitled to 80 hours while part-time employees are entitled to a prorated amount.
• Employers can’t provide EPSL in a manner that favors highly compensated employees or full-time employees or that discriminates based on how long employees have worked for the employer. (Be aware that any inconsistencies in the granting of leave could potentially lead to a discrimination claim.)

Emergency Family and Medical Leave (EFMLA) Changes
Here are the key changes to EFMLA, in effect from April 1 through September 30, 2021:

• EFMLA can now be used for any EPSL reason, in addition to the original childcare reasons. This includes the two new EPSL reasons noted above.
• The 10-day unpaid waiting period has been eliminated.
• The cap on the reimbursable tax credit for EFMLA has been increased to $12,000 (from $10,000). This applies to all EFMLA taken by an employee, beginning April 1, 2020. This change accounts for the additional 10 days of paid time off—the daily cap of $200 remains the same.
• The law isn’t clear as to whether employees are entitled to a new 12-week bank of EFMLA. We anticipate that the IRS, DOL, or both will provide guidance on this question soon. It is possible that an employee will be entitled to additional unpaid protected time off, even if they already received the maximum reimbursable amount during previous EFMLA leave(s). We will update our materials if and when new information is available.
• Employers can’t provide EFMLA in a manner that favors highly compensated employees or full-time employees or that is based on how long employees have worked for the employer. (Again, be aware that any inconsistencies in the granting of leave could potentially lead to a discrimination claim.)

Reasons for Using EPSL and EFMLA
Starting on April 1, employees can take EPSL or EFMLA for the same set of reasons, which is a useful simplification. The following are acceptable reasons for taking these leaves:

1. When quarantined or isolated subject to federal, state, or local quarantine or isolation order
2. When advised by a health care provider to self-quarantine because of COVID-19
3. When the employee is:
   a.  Experiencing symptoms of COVID-19 and seeking a medical diagnosis
   b.  Seeking or awaiting the results of a diagnostic test for, or a medical diagnosis of, COVID-19 because they have been exposed or because their employer has requested the test or diagnosis
   c.  Obtaining a COVID-19 vaccination or recovering from any injury, disability, illness, or condition related to the vaccination
4. When caring for another person who is isolating or quarantining on government or doctor’s orders
5. When caring for a child whose school or place of care is closed due to COVID-19

Employees and employers will—in most cases—want to exhaust EPSL first, since it has a higher tax credit, except when used to care for others.

Tax Credit Review
The tax credits available between April 1 and September 30 are the same as under the original FFCRA, except for the increased aggregate cap for EFMLA. Tax credits are available as described below, regardless of how much EPSL or EFMLA an employee used prior to April 1.

• The credit available for EPSL when used for reasons 1, 2, or 3 (self-care) is up to 100% of an employee’s regular pay, with a limit of $511 per day.
• The credit available for EPSL when used for reasons 4 or 5 (care for another) is up to 2/3 of an employee’s regular rate of pay, with a limit of $200 per day.
• The credit available for EFMLA for any reason is up to 2/3 of an employee’s regular pay, with a limit of $200 per day and a cap of $12,000 per employee.

Employers can also claim a credit for their share of Medicare tax on the employee’s wages and the cost of maintaining the employee’s health insurance (qualified health plan expenses) during their absence.

COBRA SUBSIDIES
Another important aspect of the law employers should understand is the creation of COBRA subsidies.

Employees and families enrolled in the employer’s group health plans may lose coverage if the employee’s work hours are reduced or employment is terminated. They can elect to continue coverage under COBRA, but the high premium cost can make it difficult to afford this coverage.

ARPA provides a 100% COBRA subsidy if the employee’s work reduction or termination was involuntary. The subsidy applies for up to six months of coverage from April 2021 through September 2021 (unless the individual’s maximum COBRA period expires earlier).

For group plans subject to the federal COBRA rules, the employer will be required to pay the COBRA premium but then will be reimbursed through a refundable payroll tax credit.

Employers with fewer than 20 workers usually are exempt from the federal COBRA rules, but their group medical insurance plans may be subject to a state’s mini-COBRA law. In that case, it appears the subsidy will be administered by the carrier. The carrier will pay the premium and then be reimbursed by the government.

Employers will need to work with their group health plan carriers and vendors on how to administer the new subsidy provision. Although it takes effect April 1, 2021, employees who were terminated earlier but are still in their COBRA election window also are included. Federal guidance is expected to be released by April 10, including model notices that plans can tailor for their use.

Note that the COBRA subsidy doesn’t apply during FFCRA leaves because employees are entitled to maintain their health insurance during those leaves on the same terms as though they had continued to work.

American Rescue Plan Act Signed Into Law
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Before jumping on the mandatory vaccination bandwagon, employers should consider these important questions:

• Does your company need a mandatory vaccination program? Should you leave it to your employees to make their own decisions?
• If you decide to implement a mandatory vaccination program, how will you announce it, how will you roll it out, and what is the timing? Have you factored in that vaccines may not be available to all employees at the same time?
• If you decide to implement a mandatory vaccination program, how will you handle requests for exemptions? What will you do with employees who refuse to be vaccinated?
• What are the pitfalls of a mandatory vaccination program?

Let’s break this down further.

Can employers mandate that employees receive a COVID-19 vaccine?

The answer is yes.

The EEOC’s updated guidance now addresses issues regarding “mandatory vaccinations” and makes clear that employers can mandate that employees get the COVID-19 vaccination. The justification for mandating vaccination, especially during the pandemic, is based on the premise that unvaccinated employees present a “direct threat” to others in the workplace. (K.5.).

Many employers are already stating that once the vaccine is widely available they may mandate a vaccine before employees can return to the office. However, as will be discussed below, even if a mandatory policy is enacted, employees may nonetheless be entitled to exemptions on the basis of disability or religious accommodation.

Do employers need a mandatory program?

The answer depends on your business.

If you run a business where your employees can safely work remotely or socially distance, you may not need it right away. On the other hand, if you run a retail business, school, a restaurant, or any similar business where employees circulate among each other or deal with the public, a mandatory vaccination program may beneficial to your operation. Many retail and customer facing industries believe that it will be a good advertisement if they can say that their employees are all vaccinated.

Whatever the approach, employers should not jump in without weighing the costs and benefits. Things to consider include administrative costs challenges to implementing a mandatory program, such as training and legal compliance.

How will you roll it out and when?

Here again, messaging and timing must be carefully considered. Right now, vaccines are only available to frontline healthcare workers. Thus, if your business does not fall into that category, you will need to wait until vaccines are available to your workforce to institute a mandatory program. Even then, you may have to allow for a vaccine rollout over time, and only make the mandate applies to those employees who are eligible to receive a vaccine.

In the early months of 2021, practical questions about fairness may arise. For example, if an employee wishes to comply but a vaccine is not available to them, should they be excluded from the workplace? Employers adopting a mandatory program will likely face, and should be prepared to handle a number of similar questions.

Next let’s look at the issues surrounding employees receiving the vaccination.

Is the vaccination a medical exam?

The answer is no, it is not a medical exam.

The EEOC says the vaccination is not a medical exam, which is “a procedure or test usually given by a health care professional or in a medical setting that seeks information about an individual’s physical or mental impairments or health.” (K.1.). The guidance provides that: “[i]f a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination.” (K.1).

Can we ask an employee for proof of vaccination?

The answer is yes, employers can require proof of vaccination.

But employers must still be careful and make sure that requests for proof of vaccination do not go too far. The guidance expressly warns against probing questions: “[e]mployer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability, and would be subject to the pertinent ADA standard that they be ‘job-related and consistent with business necessity.’” (K.3).

The EEOC has also advised that you warn employees not to provide any medical information as part of the proof of vaccination. (K.2.)

Employers should anticipate requests for exemptions.

What about the employee who is just afraid? 

Many people, including some of your employees, are scared and reluctant to take the vaccine and will provide all sorts of excuses to avoid it.

Generally, you will not have to accommodate an employee, unless they suffer from a disability or raise a legitimate religious objection. However, as a practical matter, you should think about how you will handle an exemption request. Are you going to terminate or bar such employees from your workplace? Will you try to accommodate, even if not required by law? The answer to these questions will vary for every business, but they should be considered before you implement a mandatory program.

Remember, your best employees may fall into this category, as may a poor performer. The key to avoiding pitfalls is to be consistent in your approach to evaluating and granting exemptions.

How should employers handle requests for an exemption based on a disability?

This is where the implementation of a mandatory vaccine program gets tricky. We know that the ADA requires employers to make reasonable accommodations to employees with disabilities. But what do you do if an employee has a disability that precludes them from taking the COVID-19 vaccine – such as an allergy? How do you balance the need to accommodate with the threat that employees may pose to other workers?

Luckily the EEOC provides us with guidance. Below are the steps employers must take:

1. Require the employee documentation to substantiate the need for the accommodation, through a doctor’s note. You can then evaluate whether the request is legitimate.
2. Determine whether allowing the unvaccinated employee to come to work will prove a “direct threat” to the workplace.

“Direct threat” is defined as a “significant risk of substantial harm… that cannot be eliminated or reduced by a reasonable accommodation.” Factors to consider are: duration of the risk, the severity of the potential harm, and the likelihood and “imminence” of potential harm. (K.5).

The EEOC has explained that a determination about whether an individual presents a direct threat can “include a determination that an unvaccinated individual will expose others to the virus at the worksite.” (K.5).

Note – if there is no direct threat that can be documented, do not go to question 3. You should grant the exemption. Also, as more employees are vaccinated, does the direct threat posed by a few unvaccinated employees disappear? These are questions that remain to be answered.

3. Assuming you can document there IS a direct threat, you must then engage in the interactive process to determine whether you can provide a reasonable accommodation, one that will not pose an undue hardship to your business.

Possible alternative accommodations include providing PPE to the employee or allowing the employee to work remotely.

If employers can’t accommodate a disability through an exemption, can they terminate?

The answer is maybe, but only as a last resort.

The EEOC states: “If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace.” (K.7).

An employer pursuing a mandatory program, therefore, should make sure they continue to meet their obligations under the ADA, and state law equivalents, to engage employees in the interactive process and think critically about how the potential harm of having an unvaccinated employee in the workplace can otherwise be mitigated.

How should employers handle requests for accommodation based on religion?

Title VII requires that employers accommodate an employee’s sincerely held religious belief, practice or observance prevents them from taking a vaccine, unless doing so would present an undue hardship on the company (“more than de minimis cost”).

However, the requirements for religious accommodations are somewhat easier on employers than disability accommodations, as not every sincerely held conviction will meet Title VII’s standard. That said, the EEOC has said in the past that an employer should start with the assumption that a request for a religious accommodation is legitimate, and should be accommodated – absent an undue hardship.

You may be wondering whether you can question the request if the employee never spoke about or claimed to practice a religion, or if the employee behaved in a manner that is inconsistent with the professed religious belief, or question the timing of the request. The answer is, employers can probe into an employee’s requests and ask for supporting information when they “have an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance.” (K.6.).

Can employers deny an exemption if it would pose an undue hardship on the business?

The answer is yes, an employer can refuse to provide an exemption if it would pose an “undue hardship.” What constitutes an “undue hardship” varies depending upon the context in which the exemption is sought.

Can employers bar employees from the workplace, or terminate, if they cannot accommodate?

Unfortunately, the best answer the EEOC can provide is maybe.

First, understand that these are two different things. Barring from the workplace is exclusion from the office or store or restaurant where the employee works. If an employee can work from home, that may not mean termination. Obviously, in the case of a retail or hospitality business, an employee who cannot come in cannot do their job, so they would not need to be paid, and could be fired.

It is more than likely that there will be situations where employers cannot provide an exemption or accommodation for safety reasons, or because of undue hardship. In these cases, an employer can lawfully exclude the employee from the workplace, but cannot automatically terminate the employee. (K.7.).

When can employers terminate?

The answer, frankly, is after you have documented that you cannot accommodate and have considered all reasonable options.

Before terminating an employee with a disability, consider whether you want to place them on an unpaid leave or there is any alternative to firing. If there is no end in sight to the need for this leave – such as may be the case with an employee who has a condition that will preclude then from taking the vaccine – termination may be the only alternative.

Employers should remember to carefully document why they cannot accommodate. For example, if remote work as an accommodation cannot be granted, employers have to lay out specifically why the job cannot be done remotely. As set forth in the EEOC guidance, the employer’s obligation will be “to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.” (K.7).

Finally, what are the pitfalls to a mandatory program?

There are many good things about a mandatory vaccine program, such as giving your employees, clients and customers a sense of security and normalcy, and allowing those who want to work in-person the ability to do so. However, as outlined above, employers should really think through the need and administration of such program before implementing. Think about:

• • How will you announce this?
  • How will you train your managers to handle employee questions?
  • What about employee relations, think about the morale of those who feel “forced” to take a vaccine? What about those who want a vaccine, but cannot get it and feel excluded?
  • If an employee is accommodated, how can you make sure that succeeds? How do you prevent feelings of exclusion or jealousy?

Employee compliance may present an even bigger issue. Public opinion on the COVID-19 has been mixed. Although employers may be prepared for challenges premised on religious or disability based accommodation, they are more than likely going to face concerns from employees who just don’t want to be vaccinated. While employees personal preferences do not require an accommodation, employers who enact a mandatory vaccination program may be charging headfirst into a morale problem, especially when trying to mandate vaccination for employees who have already been working for months safely relying on PPE and employer adherence to CDC guidelines.

Legal compliance is also likely to present a risk. Employers may for the first time be implementing a vaccination program or handling exemption requests, all of which implicate overlapping federal, state, and in some cases local laws. There are many areas where an employer can go wrong, and where managers, if not properly trained, can do or say things that create a risk of liability.

Employers who choose to take the mandatory approach should expect and be prepared to comply with state and federal laws and are advised to work with legal counsel to create a plan.

The EEOC Confirms You CAN Mandate a Vaccine, But SHOULD You?
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The final rule prohibits management from keeping any portion of employees’ tips regardless of whether the employer takes a tip credit. The rule also codifies DOL guidance on how the tip credit applies to employees who perform a mix of tipped and nontipped duties.

Employers should note that the final rule does not change state wage and hour laws, which may be more generous to workers than federal law. Some states, such as California and Nevada, do not allow employers to take a tip credit.

We’ve rounded up articles from trusted outlets on the final rule regarding FLSA tip regulations.

‘Clarity and Flexibility for Employers’

The final rule addresses changes to the FLSA’s tip-credit regulations that were made under the Consolidated Appropriations Act (CAA) of 2018.

“This final rule provides clarity and flexibility for employers and could increase pay for back-of-the-house workers, like cooks and dishwashers, who have been excluded from participating in tip pools in the past,” said DOL Wage and Hour Administrator Cheryl Stanton. “Newly allowed tip-sharing may incentivize the inclusion of these previously excluded workers and reduce wage disparities among all workers who contribute to customers’ experience.”

The DOL’s final rule will:

• Allow employers that don’t take a tip credit (meaning that they pay at least the standard minimum wage) to mandate “nontraditional” tip pools that include employees who do not customarily and regularly receive tips.
• Prohibit all employers—regardless of whether they take a tip credit—as well as managers and supervisors from keeping employees’ tips for any reason.
• Require employers that collect tips under a mandatory tip-pool policy to fully redistribute the tips to employees at least as often as they pay wages.
• Incorporate the CAA’s monetary penalties for violations.
• Incorporate a new record-keeping requirement for employers that pay the full minimum wage and mandate tip pooling.
• Allow employers to take a tip credit for the time that tipped employees perform related nontipped duties “either contemporaneously with or for a reasonable time immediately before or after performing tipped duties.”

The rule is scheduled to take effect on March 1.

(U.S. Department of Labor)

Employer Options

Under the final rule, employers can still choose between taking a tip credit and mandating a nontraditional tip pool. The final rule just gives employers that pay the full minimum wage more leeway on how to structure their compensation policies. If an employer does take a tip credit, the tip pool can only include waiters, bussers and other employees who customarily receive tips.

Controversial Rule

Many restaurateurs and business groups supported the rule, but some worker-advocacy groups have said that the rule would let employers cut base compensation for back-of-the-house workers. The DOL issued FAQs about the new regulations acknowledging that “some employers could potentially offset some of the increase in total compensation received by back-of-the-house workers by reducing the direct wage that they pay those workers.” President-elect Joe Biden’s administration could delay implementation or create new tip rules.

Notifying Employees of the Tip Credit

Under the FLSA, employers can pay tipped workers as little as $2.13 an hour if those workers earn at least the standard minimum wage of $7.25 an hour once their tips are added in. The final rule clarifies that prior to taking a tip credit, the employer must notify tipped employees about the wages they will receive, the tip credit that the employer will take and their right to retain all tips except those that are contributed to a tip pool. Employees also must be told that the employer will pay the difference if their combined tips and wages are less than the minimum wage. Although the final rule doesn’t require employers to provide this information in writing, employers should consider doing so in case they must show evidence that employees were provided the appropriate information.

Eliminating the 80/20 Rule

The final rule codifies DOL guidance eliminating the 80/20 rule, which only allowed employers to take a tip credit for workers who spent no more than 20 percent of their time on nontipped duties. The new rule more broadly allows employers to take a tip credit when tipped employees perform related side jobs (such as rolling silverware) either during, just before, or a reasonable time after tipped duties.

DOL Issues Final Rule on Employee Tip Sharing
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The provision applies only to employers and workplaces that are operating completely remotely because of the public health crisis. The policy was initially issued March 20 and has been extended six times.[/vc_column_text]

• Ensure that I-9s for new hires are completed within three days of the employee’s start date.
• Ensure that Section 3 of the form for reverifications is completed before the employee’s work authorization expires.
• Maintain copies of the documents inspected remotely.
• Maintain written documentation of the remote onboarding and telework policy for each employee.
• Write “Remote inspection completed on xx/xx/xxxx” in the form’s Section 2 Additional Information box or in Section 3 for reverifications.
• Update the form once a physical in-person inspection is performed.

“For some organizations, virtual verification has been extraordinarily helpful,” Fay said. “Employers operating remotely can safely onboard their new employees or reverify existing ones without risking the safety and health of the HR department and the newly hired workers themselves. Employers using electronic I-9 systems, in particular, have quickly adapted to the virtual process using helpful tools such as employee document capture and upload, COVID-19 follow-up tracking, and advanced reporting.”

The ICE guidelines are not mandatory. Employers can still follow standard Form I-9 procedures, including using authorized representatives to complete verification on the employer’s behalf.

“The authorized representative path—which may include the new hire’s friend or family member—has a lot of advantages over virtual verification, not the least of which is the fact that it’s always an available option for employers and not subject to sudden policy termination,” Fay said. “It’s also worth noting that the authorized representative option involves just one verification as compared with the virtual verification option which essentially requires two steps.”

ICE Extends Form I-9 Flexibility
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NEW TEST FOR DETERMINING WHETHER A WORKER QUALIFIES AS AN INDEPENDENT CONTRACTOR

The FLSA’s minimum wage and overtime provisions apply only to employees. These provisions do not apply to workers who qualify as independent contractors. In issuing the Final Rule, the DOL announced that it is revising the FLSA regulations in an attempt to help guide employers in deciding whether workers should be classified as employees or independent contractors under the FLSA. The Final Rule reaffirms the DOL’s current position that an “economic realities” test should be applied to determine whether an individual is in business for themselves (an independent contractor) or is economically dependent on a potential employer for work (an employee). The Final Rule, however, modifies the economic realities test the DOL previously endorsed and identifies five factors, including two “core factors”—the nature and degree of control over the work and the worker’s opportunity for profit or loss based on initiative and/or investment—that should be used to determine whether a worker qualifies as an independent contractor for purposes of the FLSA.

FIVE FACTORS

The Final Rule identifies five non-exhaustive factors to guide the analysis of whether a worker is an employee or independent contractor. Among these five factors, two “core factors” are afforded the greatest weight:

• The nature and degree of the worker’s control over the work. This factor weighs toward classifying a worker as an independent contractor where the worker, as opposed to the potential employer, exercises substantial control over key aspects of the performance of the work. Examples include the worker setting their own work schedule, selecting their own assignments, and retaining the ability to work for others (including competitors of the potential employer).

• The worker’s opportunity for profit or loss. The second core factor that weighs toward classifying a worker as an independent contractor is where the worker has an opportunity to earn profits or incur losses based on: (1) the exercise of personal initiative, including managerial skill or business acumen; and/or (2) the management of investments in or capital expenditure on items such as helpers, equipment, or material. Conversely, if a worker is unable to affect his or her earnings through initiative or investment, or is only able to do so by working more hours or more efficiently, this factor weighs toward classifying a worker as an employee.

These two “core factors” are complemented by three additional factors that the DOL considers less probative and should be utilized when the initial two core factors lead to inconsistent results:

• The amount of skill required for the work. This factor weighs in favor of classifying a worker as an independent contractor where the work at issue requires specialized training or skill that the potential employer does not provide. Otherwise, it weighs in favor of classifying a worker as an employee.

• The degree of permanence of the working relationship between the worker and the potential employer. This factor weighs in favor of classifying a worker as an independent contractor where the working relationship with the potential employer is by design definite in duration or sporadic. In contrast, a working relationship that is indefinite in duration or continuous suggests that the worker is an employee.

• Whether the work is part of an integrated unit of production. This factor weighs in favor of classifying a worker as an independent contractor where their work is segregable from the potential employer’s production process. This factor is narrower than the “integral to the business” factor applied by courts and under DOL’s previous interpretation of the “economic realities” test. Thus, instead of looking at whether the work is “integral” to the business, the Final Rule looks at whether the work is a component of the potential employer’s integrated production process for a good or service.

The Final Rule emphasizes that, in conducting the inquiry, the actual practice of the worker and employer is more relevant than what may be contractually or theoretically possible and includes six fact-specific examples applying the different factors.

IMPACT ON STATE WAGE AND HOUR LAW TESTS

The Final Rule applies only to the FLSA. Therefore, it will have no impact on any state wage and hour laws that have not adopted the FLSA for determining whether a worker should be classified as an employee or independent contractor. For example, California, with some exceptions, generally applies the “ABC test,” where a worker is considered an employee and not an independent contractor unless the hiring entity satisfies three conditions distinct from the factors identified in the Final Rule. Accordingly, regardless of DOL’s guidance on who qualifies as an independent contractor, employers should always review whether and how different state laws may apply to their workforce.

PRACTICAL EFFECT AND EMPLOYER OUTLOOK

The Final Rule is scheduled to take effect on March 8, 2021, 60 days after publication in the Federal Register. As a practical matter, however, a DOL led by appointees of the incoming Biden administration is unlikely to allow the Final Rule to go into effect. First, the Biden team has indicated that it will issue a memo on Inauguration Day seeking to halt or delay regulations issued in the waning days of the Trump administration that have not yet taken effect. To implement the Executive Order, a Biden DOL would, first, likely delay the effective date to review the rule, and then rescind the Final Rule. Second, with the Democratic Party taking control of the US Senate, it is possible that the Final Rule could be overridden under the Congressional Review Act. In other words, employers should wait and see what steps a Biden DOL might take to unwind the Final Rule and whether it will issue different guidance before making any changes to their business arrangements.

DOL Publishes Independent Contractor Final Rule
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