COVID-19 Form I-9 Exceptions Expiring Soon
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I-9 Flexibility is Over

I-9 Compliance Update

COVID-19 Form I-9 Exceptions Expiring Soon!

During the peak of the pandemic (and then for some time after), the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced various extensions the Form I-9 requirement to review documents in person for employees working remotely as a result COVID-19 precautions. Instead, employers were allowed flexibility in how they reviewed documents, such as via video conference call or a scanned copy. This flexibility did not completely remove the requirement to review documents in person, rather it extended the timeline. The expectation was (and still is) that when COVID-19 precautions faded, employers would then examine the I-9 documents they reviewed virtually, in person.

Well folks, we’ve reached that point! DHS will not be extending its most recent deadline and will sunset the accommodation on July 31, 2023.

So, what does this mean?

It means that employers will need to review, in person, Form I-9 documents that were virtually examined for any employees hired on or after March 20, 2020 (when the original temporary guidance was released). Anyone hired prior to this date, or anyone not working remotely due to COVID, should also have technically already been examined in person, per I-9 requirements. The physical inspection should be completed by July 31, 2023. Now, will DHS be standing at your front door on August 1st demanding to look at your I-9’s? Probably not – so there is some flexibility with the timeline as long as it is completed as soon as feasible.

DHS has specified that once normal operations resume, the employer must physically inspect the original documents that were presented in an alternate format, and complete Section 2 of the Form I-9 Additional Information to say “documents physically examined” along with the date. If the person who originally completed Section 2 and performed the remote inspection is no longer able to examine the physical documents, then you must also list the full name and title of the person who physically examined the documents. DHS has provided the example below.

We understand it is not possible to fly every remote worker to your headquarters to present these documents – rest assured there are other options! Some background check vendors have authorized representatives who can review the physical documents on your behalf. There are also other remote Form I-9 vendors that we are happy to recommend who can assist! However, if you know a remote employee will be visiting your office soon, this would be a good time to also have them present their documents to finalize their Form I-9.

Moving Forward…

Starting August 1, 2023, employers will no longer be able to examine I-9 documents virtually and will need to examine physical documents within 3 business days – the same rules that applied prior to COVID. If you hire most or all your employees remotely, you may need to work with a vendor as mentioned above, to ensure your I-9’s are compliant.

Every employee is required to complete a Form I-9 – let this message also serve as a friendly reminder to complete an I-9 audit if you haven’t done so in over a year (we recommend annual audits)!

PUMP Act and the PWFA
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PUMP Act and the PWFA

On December 29, 2022, the President signed into law two important and monumental bills – the Pregnancy Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP). These hit close to home as our Compliance Manager, who keeps us all up to date on changing regulations, is expecting (feel free to send a congratulatory message 😉). Even if you are in California, or in one of the 30 states that already provide pregnancy protections, you will want to learn more about these new regulations.  

The Providing Urgent Maternal Protections (PUMP) Act expands employee protections under the Fair Labor Standards Act (FLSA) and applies to those who must comply with the FLSA, regardless of business size. It took effect Dec. 29, 2022, but compliance will take effect starting April 28, 2023. This law expands the right of nursing mothers to take breaks and have a private place to express milk during the workday. Very similar to California, employers must provide all nursing employees with a reasonable break each time they need to express milk. There is no maximum number of breaks, so employees are entitled to take as many as are necessary. 

Non-Exempt Employees

Under existing law, lactation breaks for non-exempt employees may be unpaid, except when:  

1) the nursing employee is not completely relieved from duty;  
2) the employer pays other employees for similar breaks; or  
3) when breast milk is expressed during paid breaks (e.g., paid 10-minute rest breaks in California). State or local laws may require employers to pay non-exempt employees for lactation break time – so be sure to check with TPPS if you are in a state this may apply to! 

So, to summarize, when an employee is using break time at work to express breast milk they either: 

  • Must be completely relieved from work duties; or
  • Must be paid for the break time. 

Further, when employers provide paid breaks, an employee who uses such break time to pump must be compensated in the same way that other employees are compensated for break times.

Employees who work remotely are also eligible to take pump breaks under the FLSA on the same basis as other employees who work in-office.

Exempt Employees 

Although exempt employees are generally not covered under the entire FLSA, the Federal Department of Labor (DOL) has specifically stated that exempt employees are also protected under the PUMP Act. Exempt employees also have the right to express breast milk in a private place during the first year of their baby’s life. 
Exempt employees must be paid their full weekly salary, regardless of whether they take breaks to express breast milk. 

What is a private space? 

The private place to express breast milk must be shielded from view, not be a bathroom and be free from intrusion from co-workers and the public. Again, if you are in one of the many states with these existing laws, you are already familiar with this! If the space is shielded from view and free from intrusion, you can have a multi-purpose area that is temporarily converted into a space for expressing breast milk and is made available when needed by a nursing parent. Other measures such as privacy screens, curtains, and signage may be used. 

Right to Rectify 

The PUMP Act requires employees to notify their employer if they haveconcerns that the company is not complying with the law. Employees then must give the company 10 days to rectify problems before filing a claim or lawsuit. 
  
The provisions of the PUMP Act are not as strict as California, New York, orOregon, to name a few, and the most beneficial law should be applied (in this case, state law). Some examples include: 

  • How long after the child is born employees are covered
  • Space requirements
  • Written policy requirements 

The Pregnancy Workers Fairness Act (PWFA) protects employees and applicants of “covered employers” who have known limitations related to pregnancy, childbirth, or related medical conditions. The PWFA applies only to accommodations, as those protections did not previously exist at the federal level (pregnancy is generally not a covered disability under the Americans with Disabilities Act). Existing laws that the EEOC (Equal Employment Opportunity Commission) enforces also make it illegal to fire or discriminate against employees based on pregnancy, childbirth, or related medical conditions. This new law will take effect June 27, 2023.

”Covered employers” include private and public sector employers with at least 15 employees, Congress, Federal agencies, employment agencies, and labor organizations. So, yes, even the White House must follow this new law! 

The relationship between the PWFA and the Americans with Disabilities Act (ADA) can get a little tricky. To simplify it, the ADA covers people with disabilities, while the PWFA protects individuals with known limitations related to pregnancy, childbirth, or related medical conditions. Pregnancy is not a covered disability under the ADA, however, there may have been times when medical conditions brought on by pregnancy or exacerbated by pregnancy may have been covered under the ADA. Now, given the PWFA’s lower standard of a “known limitation” as compared to the ADA’s definition of a disability, if an employee is considered disabled under the ADA due to a pregnancy-related condition, they would almost certainly be covered under the PWFA. But not all employees covered by the PWFA will be covered by the ADA. Ya follow?

The PWFA’s accommodation standards are based on the ADA’s. However, under the PWFA, an employer may temporarily have to eliminate an essential job function – which is not the case under the ADA.

Covered employers under the PWFA cannot:  

  • Require an employee to accept accommodation without a discussion about the accommodation between the employee and the company. 
  • Deny a job or other employment opportunity to a qualified employee or applicant based on the person’s need for reasonable accommodation.
  • Require an employee to take leave if other reasonable accommodations can be provided that would allow the employee to keep working.
  • Retaliate against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA investigation. 

Some of these may differ from other disability reasonable accommodations you see under the ADA – keep that in mind! 

Additional protections employees are entitled to under Title VII of the Civil Rights Act include protections from discrimination based on pregnancy, childbirth, or related medical conditions; and requiring an employer to treat an employee affected by pregnancy, childbirth, or related medical condition in the same way it would treat other similar employees in their ability or inability to work.

While these new regulations will go a long way to protect the rights and provide accommodations for pregnant and nursing parents throughout the United States, employers are encouraged to act now to assure compliance and protect themselves from disputes and possible lawsuits. As with all things HR, do not hesitate to contact TPPS if you have questions or would like help setting up PWFA and PUMP compliance policies for your organization.  

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2023 COVID Non-Emergency Regulations

Employers are not off the hook just yet with COVID. On February 3, 2023, the Office of Administrative Law approved Cal/OSHA’s proposed non-emergency standards and they went into effect immediately, leaving the Emergency Temporary Standards (ETS) in the dust. Some notable changes to the previous ETS are:

  • A separate stand-alone COVID Prevention Plan (CPP) is no longer required. Instead, COVID prevention and safety standards can be addressed in the existing Illness and Injury Prevention Program (IIPP). However, a separate CPP can still be used so long as it meets the necessary requirements. 
  • Exclusion pay is no longer required to be paid by employers. 
  • The definition of “close contact” and “exposed group” has been updated. 
  • Isolation and quarantine periods have been updated by Cal/OSHA to mirror California Department of Public Health (CDPH) guidelines.

HR Professionals and attorneys alike have had our fair share of struggles in understanding how we are to handle COVID cases moving forward under the non-emergency regulations (NER). We are providing a high-level overview of definitions and processes, however, if you require more in-depth information or would like assistance in handling positive cases, just ask us!

Let’s start with definitions. 

COVID-19 Case: 

A confirmed positive case, whether contracted at work or at home, that is confirmed through an at-home test, a PCR lab test, or doctor diagnosis.

Infectious Period: 

When symptoms are present

  • 2 days before the symptoms began until 10 days after the employee first had symptoms OR  
  • Through day 5 after symptoms if the symptoms have improved (24 hours fever free and other symptoms getting better) AND a negative test was received on day 5 or later.

When symptoms are not present

  • 2 days before the positive test sample was collected (not the day the results were received) until day 10 after sample was received OR  
  • Through day 5 after sample was collected if symptoms are not present AND a negative test was received on day 5 or later. 

Exposed Group:

This can be the same or different than a “close contact” as defined below. Employees in an exposed group are considered “potential exposures”.

Everyone at the worksite, working area, or in a common area at work where a person who tested positive was present at any time during their infectious period. 

Does not apply to the following scenarios: 

  • An employee who works remotely from a location that is not in the employer’s control (such as a shared workspace, coffee shop, etc.).
  • An employee who works from home or works in an on-site area where they are the only employee in that area.
  • A place where employees walk through briefly AND everyone was wearing a facemask WITHOUT congregating. This would not be considered a common area. (Common area is a hallway, bathroom, conference room, etc.)
  • Employees working different shifts that had no overlap and are not present at the same time as the positive employee.
  • If the positive employee visited a work location, work area, or common area for less than 15 minutes during their infectious period AND all persons present were wearing a face mask.

An exposed group can be broader than a close contact.

Close Contact: 

An individual who was in close contact with a COVID confirmed case during their infectious period. The amount of time spent with the COVID confirmed individual to be considered a “close contact” will depend on the size of the space they are in. 

If the indoor space is larger than 400,000 cubic feet per floor and the contact with the COVID confirmed individual was within 6 feet for 15 minutes total in a 24-hour period during the COVID confirmed individual’s infectious period, then it is a close contact.

How can you determine the size/volume of the indoor space?

  1. Multiply the square footage by the average ceiling height; OR 
  2. Length of space X Width of space X Height of space = Volume of space

If the indoor space is less than 400,000 cubic feet and they were sharing the same air space during the infectious period, then it is a close contact. However, spaces that are separated by floor to ceiling walls or doors that remain closed are considered its own indoor space.

If the individual with the confirmed COVID case was wearing a respirator, such as an N95, or if the close contact employee was wearing a respirator during the period of close contact as defined above, then that is not a close contact.

Now that we (sort of) have an understanding of the infectious period, exposed group, and close contacts, here is how those definitions will play into how you are determining who needs to be excluded from the workplace.

Workplace Exclusion:

Cal/OSHA has now aligned their requirements with the CDPH guidance on workplace exclusions. The following must be excluded from work during their infectious period:

  • Confirmed positive COVID cases.
  • Close contacts to a positive COVID case when symptoms are present.
  • All persons exhibiting COVID symptoms while waiting for test results, or if they choose not to test.

The following do not need to be excluded from the workplace, however, DO need to wear a face mask for at least 10 days.

  • Close contacts to a positive case with no symptoms present. If symptoms become present, immediately exclude from the workplace.

Exposed groups do not need to be excluded from the workplace unless they were also identified as a close contact and symptoms are present, as stated above.

So, you’ve identified who needs to stay home and who doesn’t… now what?

Notices to be posted (or sent out):

A notice needs to go out to both the exposed group and the close contacts. AB 2693 gave us the option to post the information we would normally send via an email blast. To be compliant, the notice must be posted where anyone in the exposed group and close contacts can easily see the posting. This is usually where you have your employment posters (I know we all have them 😉). 
Whether sent out individually or posted, the following information must be included:

  • Dates which the employee who tested positive was in the workplace during their infectious period (see definition above) – information about the employee who tested positive, such as name or other identifying information must not be included.  
  • The location of the exposures, including the department, floor, building, or other area. The location should not need to be so specific that the employee could be identified.  
  • Contact information for employees to receive information regarding COVID-19 related benefits the employee may be entitled to (see section below). This will most likely be Human Resources or TPPS. We’re here if you need us!
  • Contact information for employees to receive the cleaning and disinfection plan the employer has implemented per the guidelines of the CDC (this will be found in the IIPP or CPP, and/or with the Safety Manager).

Notices must stay posted for 15 days and be posted within one business day of the employer being notified of a positive case in the workplace. Posting on an existing employee portal is acceptable (such as Paylocity or an Intranet). 
Notices must be posted in English and in any language understood by the majority of employees. A log must be kept of all the dates the notice was posted at the worksite. A good way to keep track of this would be to take a timestamped picture of the poster at the beginning and end of the posting period. We’ll talk more about record keeping requirements in the next section.

Resources to Provide:

These resources must be provided to every employee who:

  • Is identified as a close contact, 
  • Has tested positive fort COVID (whether at work or at home), 
  • Is excluded from the workplace due to COVID, or  
  • Requests this information 

The information to be provided to them is:

  • Workers’ compensation information
  • Leaves of absences available to them for COVID related reasons (e.g., CFRA and/or FMLA)
  • Any other state, federal, or local leave laws
  • Information on State Disability Insurance
  • Information on Paid Family Leave
  • Company paid sick leave policy
  • Anti-retaliation and anti-discrimination protections of employees

If you need help creating a packet of these resources, just ask us!

After all is said and done, I can throw all my documentation away, right? Wrong! The NER has stated what the record-keeping requirements will be for the next 3 years.

Record Keeping:

Employers are required to keep a record of and track all COVID-19 cases we are made aware of with the employee’s:

  • Name
  • Contact information
  • Occupation
  • Location where the employee worked
  • Date of last day at work
  • Date of positive Covid test or Covid diagnosis

Employers must also keep the notices sent or posted to inform employees of a positive COVID case in the workplace, including the dates which they remained posted. As stated above, the most convenient way will be to keep a timestamped photo of the poster to include the start date and end date of the posting period. You’ll also want to keep a copy of the posting. If you chose to email the notices, you will need to save a copy of the email that was sent to the employee(s).  

We get it – it’s a lot! When the very first ETS came out in 2020, it took time to understand and embrace it… and the same thing will happen with the NER! If this information has prompted questions or you need guidance on handling a COVID positive case, please reach out to us! 

Other HR Changes to Come to California in 2023 - A gavel and law book with 2023 on the cover
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Other HR Changes to Come to California in 2023

Let’s close out the year with a lightning round of some final items to come in 2023 throughout California.

Fair Employment and Housing Act – New Protected Category January 1, 2023

The Contraceptive Equity Act of 2022 brought us a new protected category under the FEHA: reproductive health decision-making. Some examples of protected actions are an individual’s decision to use or access a certain contraceptive drug or device, exercising their rights to medical services for reproductive health, or disclosing information relating to reproductive health decisions. Employers cannot discriminate against any employee or applicant, or make it a condition of employment, to disclose such information.

This Act will also require most health benefit plans to provide coverage for contraceptives or other related medical services, such as vasectomies, in accordance with California’s Health and Safety Code and Insurance Code beginning January 1, 2024.

Emergency Conditions – January 1, 2023

This new law prohibits any form of retaliation, adverse employment action, or threatening adverse action against an employee who refuses to report work (or leaves early) when they have a reasonable belief that an emergency condition is causing their workplace to be unsafe. An “emergency condition” can include threats to the workplace, natural disasters that affected the workplace, criminal acts that may cause an employee to feel unsafe, evacuation orders to an employee’s home, or the school/childcare of the employee’s child. Luckily, this new law strictly excludes health pandemics – so COVID would not fall under this protection. This law also excludes workers whose main role is to render aid or services in emergency conditions, such as paramedics and firefighters, those who work at a health care/residential care facility and provide direct patient care, and employees working on a military base.

Lastly, employers may not prevent an employee from accessing or using their cell phones to seek emergency assistance, assess the safety of the situation, or communicate with a person to verify their safety during an emergency condition.

The subjective piece is the “reasonable belief the workplace is unsafe.” The law defines this as a circumstance that would cause a reasonable person to feel they are in real danger of death or serious injury if they remain at work. This can vary from person to person, so we recommend reaching out to TPPS if you have concerns.

Cal/OSHA COVID Updates – mid-January 2023

California’s state of emergency is set to end on February 28, 2023. As such, Cal/OSHA has decided to remove the COVID Emergency Temporary Standards (ETS) and instead will require non-emergency COVID regulations to be added to the Injury and Illness Prevention Program (IIPP). All employers with one or more employees are required to have an IIPP and will need to update theirs accordingly.

Although Cal/OSHA has finalized their portion, the Office of Administrative Law still needs to sign off. We estimate this will happen about mid-January 2023. TPPS will send updates in January!

Navigating California’s everchanging laws can be complicated – some of these updates may require action on your part. TPPS is here to support you, and your managers, to better understand these changes and what they mean for your individual business or industry. If you need help with these action items, please reach out!

FYI: California Privacy Rights Act - Employer Compliance
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California Privacy Rights Act

Join us for the Get Ready for 2023 (Employment Law Update Edition)! Each week we will highlight a new law coming in 2023. We’ll start with the ones that will require the most action and end with the good-to-knows. If you need assistance with executing any of these new requirements or are unsure if it is applicable to your business, we are here to help! Just Ask Us!

Employer Compliance

Protection of privacy rights has made a lot of changes on the consumer side of businesses. I’m sure we have all noticed the privacy disclosures pop up when we are just trying to buy the newest pair of Nike’s… However, it is now time for it to make its changes to the employer side of things. Specifically, with Human Resources data.

CPRA regulations will not apply to all employers. Who will it apply to?

Employers who have at least one employee in California (even if your business is not located in California). The law would only apply to employees in the state, AND at least one of the following applies:

  • Your company made over $25 million in gross revenue globally in the previous calendar year; OR
  • Your company annually collects, stores, analyzes, discloses, or processes personal information of 100,000 or more California residents or hours holds; OR
  • Your company derives at least 50% of its annual revenue from selling or sharing the personal information of California residents.

It does not apply to non-profit organizations or government organizations.

If this won’t apply to you, feel free to close this email! If it does apply, hang tight…

This is a pretty heavy lift with a lot of little caveats… if the CPRA applies to you, we recommend counsel assist you with the disclosures that are required. We provide a high-level overview of the information available, but as you all know (and as a reminder), we do not provide legal advice.

As of January 1, 2023, certain employers may need to add disclosures to their application and onboarding processes. Enforcement is set to begin on July 1, 2023.

Businesses are considered covered employers when they…

  • have at least one employee in California
  • collect information of California consumers and/or employees AND
  • have gross revenue for the previous year exceeding $25 million; buy, sell or share personal information of 100,000 or more consumers or households; OR derives 50% or more of its annual revenue from selling or sharing consumer personal information

Employee rights include: 

  • Right to know: Employees must be provided with a notice that states the personal information that the employer collects, shares, sells or discloses. This includes data it sends to third party administrators, such as benefit brokers.
  • Right to Rectify: Employees may request to correct or change the personal information their employer has on file. The employee may only change certain information with valid verification (such as a social security card). Items such as email or phone number do not need to be verified prior to change.
  • Right to Delete: Employees may request that certain personal information be deleted. We understand that certain information is required to employ someone (such as social security numbers or dependent information), and those exceptions are granted. However, if personal information is found to not be relevant or needed during the course of employment, the employee may ask that it be deleted. Personal information required to be kept for record retention purposes or other applicable laws does not need to be deleted at the employee’s request.
  • Right to Data Portability: Employees may request that a copy of their personal information be sent to them or to an authorized third party.
  • Right to Limit Use: Employees may request that disclosure and use of sensitive personal information be limited.

This law also protects against any discrimination or retaliation for employees who exercise their rights under the CPRA.

The CPRA also requires that certain notices be given at the time the data is collected (“time of collection”) and an online privacy policy. The time of collection notice must be provided at or before the time personal information is being collected from employees, applicants, contractors, etc. explaining what information is being collected, how it is being used, and how long it is being stored.

A privacy policy must also be created and available to employees that states: 

  • Categories of personal information collected during the previous 12 months;
  • Sources of the collected personal information;
  • Business or commercial purposes for collecting personal information;
  • Categories of third parties who may receive their personal information;
  • A statement that the business has not sold or shared personal information during the previous 12 months;
  • Employee’s rights under the CPRA and how to exercise those rights.

The online privacy policy should be made available to all employees and contain a retrospective view of how the company has handled personal data in the last 12 months. The notice should include the appropriate protections it is implementing to protect personal information, security procedures, sources from which they are collecting the data, business or commercial purposes for the data, the categories of third parties that the company discloses this data to (such as a benefits broker), and how employees may exercise their rights under the CPRA.

This is a lot of information and generally out of the HR realm, aside from the distribution of the disclosures. We recommend if this applies to you, you review with counsel to ensure your notices comply with the specific CPRA requirements.

Minimum wage word written on wood block with American Dollar-bills.
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California January 2023 Minimum Wage Updates

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2022 Mid-Year Minimum Wage Update

Keeping up with California’s minimum wages is almost a full time job. We have over 40 minimum wage rates to keep track of as California Employers! But TPPS is here to help keep you on track. Here’s the latest as of July 1, 2022. 

a large crane is standing next to a building
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Federal Construction Projects & Project Labor Agreements

Executive Order on Use of Project Labor Agreements for Federal Construction Projects

On February 4, 2022, President Biden signed an executive order affecting federal contractors involved in “large-scale construction contracts.” The Executive Order on Use of Project Labor Agreements For Federal Construction Projects requires that project labor agreements (PLA) be in place before being awarded a contract by the federal government that are estimated at $35 million or more. 

Though effective immediately, implementation and enforcement cannot begin until the Federal Acquisition Regulatory Council proposes regulations. The Regulatory Council has until June 4, 2022, to provide such regulation. Further, the Director of the Office of Management and Budget must also issue related guidance surrounding the new PLA requirements.

Distinctively, the Order does not require that construction companies unionize or already be in a union. Instead, it only binds federal construction contractors’ employees to the terms of a PLA. As many federal contractors are aware, there are four key provisions a PLA must include to be valid:

1. Guarantees against strikes, lockouts, and similar actions.

2. Mutually binding procedures for resolving labor disputes.

3. Mechanisms to promote labor-management cooperation on “matters of mutual interest and concern, including productivity, quality of work, safety, and health;” 

4. Terms that fully conform to federal law, regulations, and other executive orders. 

The Order will not be enforced on projects controlled by state and/or local governments, even if such projects receive federal funding. The PLA requirement for large-scale construction projects also has three limited exemption scenarios. The EO will not apply if it would:

1. Substantially reduce potential bidders for a project,

2. Otherwise, be inconsistent with federal law, or

3. Result in inefficiencies, such as short-term projects, simple projects without complexity, projects involving one craft or trade, or projects of a particularly specialized nature.

More updates on the specific regulations created by this EO are expected mid-year. Keep an eye on our updates for more in the coming months! 

If you need support, just ask us! 

medical record with a pen
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OSHA Vaccine or Test Mandate Deadlines are Looming

As of December 17th, OSHA’s Emergency Temporary Standard regarding vaccination requirements for employees has been “un-paused” by the courts. That means employers with 100 or more employees will be required to mandate their staff get a COVID-19 vaccine or have unvaccinated employees undergo weekly testing to detect infection. 

Dates to Note

OSHA states that it will begin enforcing workplace vaccination adherence on January 10th, 2022; almost a month later than it was originally anticipated to start. Though the agency is allowing this extra time for employers to catch up, they do state that the grace period only applies to those employers “exercising reasonable, good-faith efforts to come in compliance with the standard.”. In essence, those employers that ignore the OSHA rules set forth in this ETS may still see enforcement actions (i.e. citations).

In a similar vein, OSHA stated that enforcement measures on the COVID-19 testing requirements for unvaccinated employees will start on February 9th, 2022, with the same language regarding that extra time being granted to employers acting in good-faith.

What This Means for Employers

Although there are many cases currently in litigation that challenge the ETS in whole or in part, business leaders should assume that they need to jump on the compliance bandwagon for the rules of this ETS. Though there are never any guarantees in politics or litigation, it is very possible that the OSHA mandate is once again paused or altogether changed. 

On January 7th, 2022 the Supreme Court is expected to review the enforceability of the ETS via court hearing. That means that by the ETS’s January 10th deadline for vaccination compliance, the whole thing could be thrown out, still in review, or fully accepted. All we can do is put good-faith effort into following and complying with the laws as they surface, morph, get buried in court, and then surface again. 

In the meantime, following are some details to help you prepare. 

Who: 

“Large Employers” meaning those with 100 or more employees (regardless of full time or part time status) must comply with the ETS. 

Employers must count ALL employees working in the US regardless of state, location, division, work from home status, etc. If someone works for you in an employment relationship within the US, they get counted in the tally. 

The total does NOT include contractors, staffers from an agency, subcontractors, or other individuals working at your site not employed by you (e.g., a construction contractor with sub-contractors working on their jobsite). 

In situations with affiliated business (e.g., FEINs with common ownership, management, etc.) or Joint Employment where Health and Safety is managed at a centralized location, the total of all employees of these separate entities should be combined to assess if the business has 100 or more employees. Because this can get very situation specific, you may want to consult with legal counsel. 

If you are not yet at 100 employees, but close, pay attention because as soon as you hire that 100th employee this will apply to you. Also, if you have 100 employees today, but drop below 100 employees in say February 2022, you WILL STILL be required to comply with this ETS. 

What: 

In summary, the ETS requires Large Employers to create a Mandatory Vaccination Policy OR test employees weekly and require them to wear masks. 

There are some very limited exemptions which include employees who are completely isolated from other staff, clients, vendors, the general public, etc. and workplaces that are exclusively outdoors. If you believe an exemption may apply to you, we suggest you seek legal counsel for validation. 

When: 

All Large Employers must comply by January 10th for the vaccination portion of the ETS, and February 9th for the regular testing portion. 

The ETS is set for SIX MONTHS. But, as we have learned throughout COVID, this is likely to change. The ETS is also being actively challenged, so there is a chance it will change form in some way, BUT we won’t know what those challenges will yield until AFTER we must begin complying. So, let’s move forward assuming this is the law for six months. 

How: 

Now how in the world do we do this? Here are 6 steps to compliance: 

1. Create a Policy by January 10th: 

  • Large Employers may choose to create a policy that requires mandatory vaccination WITHOUT the option to test, OR to create a policy that allows testing when an employee is not vaccinated. 
  • When Large Employers elect to allow testing in lieu of vaccination, they have until February 9th to begin the testing.
  • OSHA has given us some templates here. 

2. Collect vaccination status from all employees by January 10th: 

a. Employers can collect documentation any of the following ways: 

  • Take copy of vaccination card, public health record showing vaccination given, or certification from the employee’s medical provider. 
  • Allow employee to provide an affidavit attesting they have been vaccinated. It is advised that employers should use this option only when the employee absolutely cannot provide evidence outlined above. An employer with “too many” self-attestations likely may trigger OSHA to dig further in the event of an OSHA inquiry. Also, to note – it is a criminal offense for any individual to use a fake vaccination record. 

b. Create a log to track these records by employee. 

3. Be prepared to produce documentation upon request: 

  • Employees have the right to receive a copy of their vaccination card/proof within 4 hours of asking their employer. 
  • Employees also have the right to receive information on the number of workers in the workforce and the number who are vaccinated (just aggregate data). Employers must not release information to other employees on an individual’s status. 

4. Determine Who Pays for What: 

  • Federal OSHA says that employers do NOT have to pay for COVID vaccinations nor COVID testing for employees who chose testing over vaccination. However, state, local, or union requirements may dictate otherwise. Know what applies to your business. 
  • Understand that the ETS requires that employers give employees up to four hours of paid time to receive the vaccine. It also requires that employers allow employees to use their paid sick leave to recover from the vaccination when necessary. 
  • Again, State-OSHA programs, union agreements, and even your own policies, may require that you provide compensation to employees greater than what the ETS mandates. 

5. Define your Interactive Process: 

a. Inevitably, you will receive an employee who requests an accommodation for religious or medical reasons. As employers are required to do under many laws that existed long before COVID (e.g., the ADA, Title VII), an employer must engage in the interactive process when an employee or applicant for employment requests an accommodation. 

b. This is a hard concept for many as there is no one-size-fits-all approach to the interactive process, nor a checklist everyone can follow. But there are essentials to the Interactive Process: 

  • It’s called Interactive for a Reason – we must dance with the employee. This is a two-way dialog. Be cautious about making determinations about an accommodation request too quickly, and without having dialog with the employee outside of their initial request for an accommodation. Go into each conversation assuming there is something you don’t know. 
  • Collect the employee’s request and applicable documentation. 
  • For religious accommodation requests, we suggest you create a form that employees can complete to formally submit their request. Our friends at Fisher-Phillips have a free resource anyone can access which includes sample forms. 
  • For medial accommodations, employees should submit documentation from their medical provider.
  • Review the options. This may include specific accommodations suggested by the employee but does not limit you to only review their requests. The employer may also come up with accommodation options to be discussed during the process. 
  • Don’t be too quick to reach a decision. 
  • Be sure you can fully articulate your final decision, and you have business reasons behind it. Set aside personal feelings and keep them out of your decision making. 
  • Seek guidance from HR Pros such as TPPS, and your employment counsel. 

6. Stay flexible & alert: 

This all can change, and we have yet to hear from many state-run OSHA programs, such as Cal-OSHA. It is almost certain there will be modifications in the weeks to come. 

Why: 

Aside from the obvious, we are trying hard to keep all our workplaces safe and healthy, and OSHA has some pretty hefty fines for non-compliance. Penalties start at just over $13k for an “other than serious” or “serious” violation, and they start at $136k for a “willful” violation. Penalties are PER violation. So, wait and see, is not advisable as an OSHA violation is sure to yield a 6-figure per employee penalty. 

This is just a summary, and we are sure to learn more in the days to come. TPPS will continue to keep you informed of changes and new developments as we learn more. If you need support, just ask us! 

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2022 Minimum Wage Updates!

Here we go again. Tis the season for minimum wage increases. California has 30 different minimum wages, as well as two categories for employers for the state-wide minimum wage. Also, often overlooked, the California exempt salary minimum is tied to the State’s minimum wage – that is Exempt employees must be paid two times the State’s minimum wage. For employers with up to 25 employees that is $58,240 per year, and for employers with 26 or more employees the minimum is  $62,400 per year.