The Employer E-Letter: Labor and Employment Law News
from the Duluth, Minnesota law firm of
Hanft Fride, A Professional Association.
Co-Editors, Scott A. Witty, firstname.lastname@example.org and Richard R. Burns, email@example.com, or 218.722.4766. Please feel free to forward this e-mail or share it with others. If there are other topics of interest to you or any other suggestions concerning this newsletter, please let us know.
This Month’s Topics:
- FACE COVERING REQUIREMENTS CHANGE
- EEOC VACCINATION GUIDANCE UPDATED
- BIDEN ADMINISTRATION RESCINDS TRUMP RULE ON INDEPENDENT CONTRACTOR STATUS
- ELIGIBLE EMPLOYERS MUST FILE TWO YEARS’ OF COMPONENT 1 DATA BY JULY 19, 2021
- Tip Of The Month
FACE COVERING REQUIREMENTS CHANGE
As seen in recent unmissable headlines, face-covering rules in public and private places, both indoor and outdoor, are changing in light of the effectiveness of COVID-19 vaccines, the increased percentage of the population that has received the vaccine and the related decline in infection rates and hospitalizations. It started with the federal Center for Disease Control and Prevention, who came on May 13 released revised guidance stating fully-vaccinated people no longer need to wear masks or physically distance, except for healthcare settings (hospitals, clinics), public transportation (planes, buses, trains) and where required by federal, state or local law. Shortly thereafter, OSHA adopted the CDC guidance for face covering requirements in workplace settings, though it indicated further review of the CDC guidance and updated materials for employers will be forthcoming on its website. On May 14, Minnesota Governor Tim Walz followed suit by removing face-covering requirements in public spaces and private businesses unless required under CDC Order. Governor Walz’ Executive Order does maintain mask requirements for schools and public transportation, and physical distancing requirements for personal care services such as barbershops and salons. Notably, the Governor’s Executive Order does not “require” those who have not received the vaccination to wear masks in public, he strongly encourages such individuals to get vaccinated or wear face coverings and socially distance to protect those who are not eligible for vaccination. On a local level, the City of Duluth announced that it will not enforce its mask ordinance, which is expected to be formally rescinded at the next City Council meeting. Important in all of these governmental changes is that businesses, organizations and property owners may require face covering and/or physical distancing for all patrons, unvaccinated visitors or employees. Clear signage at the businesses’ entry will be needed to properly advise any person entering the workplace or store premises.
Following a Wisconsin Supreme Court ruling in March, Wisconsin’s statewide mask requirement was struck down, leaving face covering rules up to local governmental units and private businesses. Municipalities and businesses will continue to determine whether to adopt CDC guidance.
On May 28, 2021, the Equal Employment Opportunity Commission updated its guidance for dealing with COVID-19 in the workplace, specifically addressing vaccinations. There are no drastic changes to the guidance last updated in December 2020, but employers will find greater detail on the Agency’s view of how federal workplace statutes and regulations it is responsible for enforcing affect the rights of employers and employees when it comes to vaccinations. Under the guidance, employers still may require all employees physically entering the workplace to be vaccinated for COVID-19 as long as reasonable accommodations are available to avoid discrimination based on disability or religious grounds. The guidance also now provides information on the required interactive process and examples of accommodations for certain circumstances, such as wearing a mask, offering work from home options or changing schedules). As before, employers may ask employees whether they are vaccinated, but inquiries as to why an employee is not vaccinated are not permitted. Likewise, employers or their agents may administer vaccinations at the workplace, but the pre-vaccination screening questions are medical inquiries so employees cannot be forced to provide information responsive to them. The new guidance expressly permits employers to offer incentives to employees to voluntarily provide documentation/confirmation that they received a vaccination from a third party (i.e. hospital, pharmacy) and notes that employers should keep vaccination information pertaining to an employee confidential. Employers may also incentivize employees to receive a vaccination administered by the employer or its agent, as long as the incentive is not so substantial to be coercive. Lastly, the EEOC warns employers that vaccination policies must not directly or indirectly disadvantage or negatively impact groups that have greater barriers to access COVID-19 vaccinations. The updated EEOC guidance provides some clarification to issues that are now arising as employers look to re-open workplaces and return to “business as usual.”
On May 6, 2021, the Biden administration’s Department of Labor (“DOL”) formally withdrew a Trump administration rule that was going to change the standard applicable to independent contractors. Traditionally, when determining whether a worker is an employee or an independent contractor, the DOL has used the “economic realities” test. Using the “economic realities” analysis, several factors are considered, including: the extent to which the work performed is an integral part of the employer’s business; the worker’s opportunity for profit or loss; the extent of the relative investments of the employer and the worker; the skill required; the permanency of the relationship; and the employer’s degree of control.
Had the Final Rule gone into effect, the Trump administration’s “Independent Contractor Rule” would have raised two of the factors above the others by deeming the nature and degree of control over the work and the worker’s opportunity for profit or loss based on initiative and/or investment as “probative” to the question of whether a worker is an independent contractor. This would have been a significant change as previously none of the factors were of higher importance than the others. As noted by the Biden administration’s DOL, this proposed rule had not been used by any wage and hour agency or any court, and it was questionable whether this proposed rule was aligned with the Fair Labor Standards Act’s text and purpose or related case law.
For the time being, the DOL said it “is not creating a new test but is instead leaving in place the current economic realities test. It is expected, however, that the Biden administration will eventually publish a new rule for evaluating independent contractor status.
The filing by eligible employers of the Employer Information Report EEO-1 Component 1 Report (EEO‑1 Report) is required under section 709(c) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-8(c), and 29 CFR 1602.7-.14 and 41 CFR 60-1.7(a). Eligible employers include private employers with 100 or more employees, and federal contractors with 50 or more employees meeting certain criteria. The EEO-1 Report includes certain demographic workforce data, including gender, race/ethnicity, and job categories. Due to the COVID-19 pandemic, 2019 data collection was delayed. The Equal Employment Opportunity Commission (EEOC) has announced that this year eligible employers must submit EEO-1 Report data for 2019 and 2020. The reporting portal will be open for 12 weeks rather than the usual 10 weeks to allow employers additional time to file data. The EEOC has formally notified previous EEO-1 filers via email. Eligible employers that have not received a 2019 and 2020 EEO-1 Component 1 notification letter via U.S. mail should contact the EEOC’s Filer Support Team at FilerSupport@eeocdata.org for assistance. Employers can find additional eligibility information at https://eeocdata.org/eeo1. The EEO-1 Report survey opened on April 26, 2021, and will close on July 19, 2021.
TIP OF THE MONTH: Employers should train management and direct supervisors to properly classify and handle family and medical leave requests. For employers subject to the FMLA, or who adopt leave rules consistent with FMLA, an employee need not explicitly use the terms “family and medical” or “FMLA” when requesting leave that falls within the Act’s purview. Employees must give a basic explanation for the need for requested leave. If the information provided puts the employer on notice that such leave would qualify for FMLA leave, the employer should treat the leave accordingly.
Hanft Fride’s business and trial lawyers are located at 1000 U.S. Bank Place, in Duluth, Minnesota. Visit our website at www.hanftlaw.com for general information on the firm and our attorneys. Our employment lawyers include Tom Torgerson, Rob Merritt and Scott Witty. Richard Burns is now of Counsel.
The information provided in this E-letter is general in nature and should not be used as a substitute for professional services and advice. The communication and receipt of this information is not intended to create an attorney-client relationship. Readers should consult with their legal counsel before taking any action on matters covered in this E‑letter.
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Copyright 2021 by Hanft Fride, P.A. All rights reserved. Hanft Fride, A Professional Association, 1000 U.S. Bank Place, 130 W. Superior Street, Duluth, MN 55802. Phone 218.722.4766; Fax 218.529.2401.