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April 2022: U.S. Department of Homeland Security Extends the COVID-19 Requirement Flexibility

Update Applicable to:
All employers.

What happened?
In our previous communication here, we informed you about an extension to the Form I-9 compliance flexibility. This is an update on that law.

What are the details?
On April 25, 2022, The Department of Homeland Security (DHS), U.S. Immigration and Customs Enforcement (ICE) announced an extension of the Form I-9 flexibilities first announced in March 2020 and updated in March 2021

This temporary guidance was set to expire on April 30, 2022. Because of ongoing precautions related to COVID 19, the DHS has extended the Form I 9 flexibilities until October 31, 2022.

Employers are encouraged to begin, at their discretion, the in-person verification of identity and employment eligibility documentation for employees who were hired on or after March 20, 2020, and who presented such documents for remote inspection in reliance on the flexibilities first announced in March 2020.

For more information, please see the links below:

ICE Announcement (April 25, 2022)

ICE Original Announcement (March 20, 2022)

Vensure’s Previous Update

What do employers need to do?
Employers should review the links provided above and should be aware of the extension to the I-9 flexibility rules to continue to process their Form I-9s with the guidance provided by ICE.

April 2022: Planning Ahead and Posting Updates

(This section provides you with an overview of labor law postings for this month. Note: many of these are included in the federal/state labor law poster.)

Federal or StateUpdated PostingMandatory or Recommended
 TBD 
FederalFair Labor Standards Act (FLSA) – Overtime Exemptions, Overtime, Joint EmploymentANTICIPATED
FederalMinimum WageANTICIPATED
FederalFamily Medical Leave ActANTICIPATED
 ANTICIPATED 
CaliforniaJob Health and SafetyANTICIPATED
CaliforniaOSHAANTICIPATED
IllinoisYou Have the Right to be Free from Job Discrimination and Sexual HarassmentANTICIPATED
IllinoisEqual PayANTICIPATED
New JerseyWage TheftANTICIPATED
New JerseyEmployee MisclassificationANTICIPATED
New JerseySafe ActANTICIPATED
New YorkSexual HarassmentANTICIPATED
New YorkDiscriminationANTICIPATED
New YorkFair EmploymentANTICIPATED
New YorkElectronic MonitoringANTICIPATED
Rhode IslandPay EquityANTICIPATED
Rhode IslandDiscriminationANTICIPATED
Puerto RicoMinimum WageANTICIPATED
New HampshirePaid Family LeaveANTICIPATED
ConnecticutPaid Family Medical LeaveANTICIPATED
LouisianaEarned Income CreditANTICIPATED
New MexicoHealthy Workplaces ActANTICIPATED
 March 2022 
Howard County, MarylandMinimum Wage and Overtime LawMANDATORY
Tucson, ArizonaMinimum Wage ActMANDATORY

April 2022: Ohio Enacts Changes to Overtime Exemption Laws and Class/Collective Action Procedures

Update Applicable to:
All employers in the state of Ohio

What happened?
On April 6, 2022, Governor DeWine signed Senate Bill 47 (SB 47), thereby formally adopting Sections 2 and 4 of the Portal-to-Portal Act (PPA) amendments to the federal Fair Labor Standards Act (FLSA).

What are the details?
Effective July 6, 2022, SB 47 will formally codify the PPA’s exclusion of certain activities from the definition of compensable “work” under the FLSA. Under the new law, employers will not be required to pay overtime wages to an employee for time spent:

  • “Walking, riding, or traveling to and from the actual place of performance of the principal activity or activities that the employee is employed to perform,” i.e., normal commuting time;
  • “Performing activities that are preliminary to or postliminary to the principal activity or activities”; or
  • “Performing activities requiring insubstantial or insignificant periods of time beyond the employee’s scheduled working hours,” that is, de minimis.

The exclusion applies to any of the above activities when they occur before the time on any workday that the employee commences the employee’s principal work activity, or after the time on any workday that the employee stops performing the employee’s principal work activity.

However, the exclusion does not apply if the employee performs the activity:

  • During the employee’s regular workday or during prescribed hours;
  • At the employer’s specific direction;
  • Pursuant to an express provision of a contract in effect at the time, the employee performed the activity; or
  • Pursuant to a custom or practice applicable to the activity, in effect at the time of performance, and the custom or practice is not inconsistent with a contract in effect at the time the employee performed the activity.

Under SB 47, an employee shall not join a lawsuit alleging a violation of Ohio’s overtime law unless the employee gives written consent to become a plaintiff and file that consent with the court in which the lawsuit is brought. This requires that an employee “opt-in” to the lawsuit is consistent with the FLSA’s “opt-in” provisions for collective actions.

Notably, SB 47 eliminates the so-called “hybrid” collective/class wage lawsuits that combine both “opt-in” plaintiffs under the FLSA and “opt-out” plaintiffs under parallel Ohio state law claims. Under the “opt-out” process, employees are automatically included in the class unless they affirmatively state in writing that they do not want to participate in the lawsuit, which can significantly increase the size of a class.

For more information, please see the links below:

Senate Bill 47 (SB 47)

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What do employers need to do?
Employers should review the links provided above and should review their overtime policies regarding preliminary and postliminary work activities to ensure they are in compliance with the law.

April 2022: Florida Governor Signs “Individual Freedom” Bill into Law

Update Applicable to:
All employers in the state of Florida.

What happened?
On April 22, 2022, Governor DeSantis signed House Bill 7 (HB 7), also known as the “Individual Freedom” bill and the “Stop WOKE Act,” into law which would limit workplace training and instructional materials and practices bearing on race and sex relations in Florida.

What are the details?
Effective July 1, 2022, HB 7 will protect civil rights in employment and K-20 education by specifying that subjecting an employee or student to a required activity that promotes, advances, or compels individuals to believe discriminatory concepts, constitutes unlawful discrimination.

Concepts constituting unlawful discrimination include:

  • That members of one race, color, national origin, or sex are morally superior to members of another race, color, national origin, or sex.
  • A person by virtue of their race or sex is inherently racist, sexist, or oppressive.
  • A person’s moral character or status as privileged or oppressed is determined by race, color, national origin, or sex.
  • A person, by virtue of their race, color, national origin, or sex should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion.

For more information, please see the links below:

House Bill 7 (HB 7)

Freedom From Indoctrination Handout

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What do employers need to do?
Employers should review the links provided above and make adjustments to their workplace training, instructional materials, and practices to ensure that they do not contain any indication that a race, color, national origin, and/or gender is superior, racist, sexist, oppressive, privileged, or oppressed.

April 2022: Washington, D.C. Dramatically Increases Paid Leave

Update Applicable to:
All employers in the city of Washington, D.C.

What happened?
Due to a surplus in the District of Columbia’s Paid Leave Fund, the number of weeks of paid leave available to D.C. workers under D.C. Universal Paid Leave Act will significantly increase on July 1, 2022.

What are the details?
Under the Universal Paid Leave Emergency Amendment Act of 2021 (PLEAA), the District’s Chief Financial Officer (CFO) may modify the maximum duration of leave available under the PFL program annually depending upon the projected balance of the Universal Paid Leave Fund. 

On March 1, 2022, the acting CFO certified that the Paid Leave Fund has enough money to increase the potential maximum duration of qualifying paid leave available to D.C. employees.

Currently, the law provides for a maximum of:

  • Eight workweeks of parental leave;
  • Six workweeks of family leave;
  • Six workweeks of medical leave; and
  • Two workweeks of pre-natal leave.

Starting on July 1, 2022, these maximums will increase to:

  • 12 workweeks of parental leave;
  • 12 workweeks of family leave;
  • 12 workweeks of medical leave; and
  • Two workweeks of pre-natal leave.

Once these new maximums take effect, there will be an overall cap of 12 weeks of paid leave available to each eligible D.C. employee per year.

In addition, the employer payroll tax used to fund this leave is being decreased from 0.62% to 0.26% as of July 1, 2022.

For more information, please see the links below:

DC Paid Family Leave

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What do employers need to do?
Employers should review the links provided above and prepare to make adjustments to their paid leave policies to ensure they are up to date.

April 2022: Statewide Paid Family Leave Set to Become Law in Delaware

Update Applicable to:
All employers in the state of Delaware.

What happened?
On April 14, 2022, the General Assembly passed Senate Bill 1 (SB 1), which would provide up to 12 weeks of statewide paid family and medical leave once signed by the governor.

What are the details?
Effective July 1, 2022, once it is signed by Governor Carney, Delaware employees can access up to 12 weeks of paid family and medical leave through the state’s paid leave trust fund for a qualifying event, including for the following:

  1. To address a worker’s own serious health condition
  2. To care for a family member with a serious health condition
  3. To bond and care for a new child
  4. To address the impact of a family member’s military deployment

Under the bill, eligible Delaware workers could receive up to 80% of their average weekly wages or up to $900 through the state-run insurance program.

Businesses with less than 10 employees would not automatically qualify for paid parental leave, and those with 25 employees or less would not be covered for caregiving or medical leave. Paid family and medical leave would only apply to full-time employees who worked 1,250 hours or a full year.

Businesses would be able to opt out of the potential paid family and medical leave program if they have an established paid leave program that is comparable. Businesses can choose to opt-in for one of the three leave policies — medical, caregiving, parental — and leave the other policies on the table to mix and match with the privacy policies.

For more information, please see the links below:

Senate Bill 1 (SB 1)

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What do employers need to do?
Employers should review the links provided above and prepare to make changes to their paid leave policies to be in compliance with the new law once it is signed by the governor.

April 2022: Third COVID-19 Emergency Rule Containing New Changes to Go into Effect Soon

Update Applicable to:
All employers in the state of California.

What happened?
On April 21, 2022, California’s Division of Occupational Safety and Health (Cal/OSHA or the Division) Standards Board met and formally approved the third re-adoption of its COVID-19 Emergency Temporary Standard (ETS), along with several changes to the ETS.

What are the details?
Effective May 6, 2022, the California ETS will go into effect for the third time and will expire on December 31, 2022.

Although the new ETS contains multiple significant changes, the obligation to pay “exclusion pay” to employees who have been excluded from the workplace as a COVID-19 case or a close contact has not changed.

Key Definitional Changes Will Lead to Changed Practices
Some of the key definitions of terms used throughout the ETS have been altered in such a way employers may need to change some of their practices.

  1. COVID-19 Test: The definition of “COVID-19 test” has been amended to provide that, to meet the return-to-work criteria, a test may be both self-administered and self-read only if another means of independent verification of the results can be provided (such as a time-stamped photograph of the results).
  2. Face Coverings: The definition of “face coverings” has been amended to remove the requirement that light does not pass through the mask when it is held up to a light source.
  3. Fully Vaccinated: The definition of “fully vaccinated” has been removed. This is largely in response to the fact that the face-covering provisions of the ETS no longer make a distinction between fully vaccinated employees and unvaccinated employees. However, employers should keep in mind that vaccination status may still be relevant for other purposes, including under local public health orders.
  4. Returned Case: The new language contains a new defined term of “returned case” to largely describe employees who previously had COVID-19 and now have natural immunity. “Returned case” is defined to mean a COVID-19 case who returned to work and did not develop any COVID-19 symptoms after returning. A person shall only be considered a “returned case” for 90 days after the initial onset of symptoms or the first positive test (if no symptoms developed). If a period of longer than 90 days is recovered by the California Department of Public Health (CDPH), that period shall apply.

More Testing of Symptomatic Employees
Under the current ETS, employers only need to make testing available to those employees with COVID-19 symptoms who are not fully vaccinated. The new language eliminates this limitation, meaning that employers will have to offer testing to all employees with COVID-19 symptoms regardless of vaccination status.

Respirators Must Be Offered to All Workers
The current ETS requires employers to provide respirators for voluntary use to all unvaccinated employees upon request. The new language eliminates the linkage to unvaccinated employees. Therefore, employers will be required to provide respirators upon request to all employees, regardless of vaccination status.

Face Coverings No Longer Mandatory for Unvaccinated Workers
The new language conforms the ETS to recent developments regarding face coverings. After CDPH changed its face-covering guidance to no longer require masks indoors regardless of vaccination status, Governor Newsom issued an Executive Order striking the ETS language that required employers to provide and ensure face coverings were worn by unvaccinated employees. The new amended ETS language reflects these changes.

Employers should keep in mind that other face-covering provisions of the ETS remain in effect. This includes language that allows employees to voluntarily wear face coverings unless it would create a safety hazard.

The new language also removes the requirement that employees who are exempted from any applicable face-covering requirement (such as returning to work following a COVID-19 case or close contact) maintain six feet of social distance from others or be tested weekly. Now the language will merely require such employees to be tested at least once a week.

Cleaning and Disinfection Rules Eliminated
The current ETS requires employers to implement specified cleaning and disinfection procedures, including regularly cleaning frequently touched surfaces and objects. The new language eliminates these requirements in its entirety.

Exclusion and Return-to-Work Criteria Streamlined
The new language generally eliminates any specific language in the ETS regarding “close contacts” and instead cross-references CDPH guidance, simply requiring employers to review current guidance and develop policies to prevent transmission by close contacts. It also removes specific return-to-work criteria for close contacts, meaning employers will simply follow the current CDPH and/or local quarantine guidance.

The new changes remove the current language in the ETS and instead provide the following (which generally conform to current CDPH guidance):

  1. COVID-19 cases, regardless of vaccination status or previous infection, who do not develop symptoms or whose symptoms are resolving, shall not return to work until (1) at least five days have passed, (2) at least 24 hours have passed without fever, and (3) a negative test is obtained on the fifth day or later (10 days if the employee is unable or chooses not to test).
  2. COVID-19 cases, regardless of vaccination status of previous infection, whose symptoms are not resolving may not return to work until (1) at least 24 hours have passed without fever and (2) symptoms are resolving, or 10 days have passed since symptoms began.
  3. Regardless of vaccination status, previous infection, or lack of symptoms, a COVID-19 case shall wear a face-covering in the workplace until 10 days have passed since symptoms began or the date of their first positive test.

New Obligations If COVID-19 Outbreaks Occur
The new changes to the ETS section on multiple COVID-19 infections and outbreaks generally make conforming changes to reflect the amendments to the ETS described above. However, the new language also makes the following changes:

  1. During an outbreak, employees who had close contact shall have a negative COVID-19 test taken within three and five days after the close contact or shall be excluded and follow the return-to-work criteria of the ETS.
  2. During an outbreak, an employer shall evaluate whether to implement social distancing. Where six feet of social distancing is not feasible, the employer shall evaluate implementing as much distance as possible between persons (as opposed to the current language which requires consideration of the use of cleanable solid partitions).

Testing Required After Major Outbreaks
The changes to the ETS “major outbreak” requirement generally conform to the changes noted above.

There is also one notable change, however. Under the current ETS language, an employer must make COVID-19 testing available to all employees in the exposed group at least twice a week during a major outbreak. The new language clarifies that employers are required to do so in such situations. Employees in the exposed group shall now be tested or shall be excluded and follow the return-to-work requirements of the ETS.

Employer-Provided Housing and Transportation Obligations Eliminated
The new language eliminates the requirement of employers to ensure that employer-provided housing is cleaned and disinfected to prevent the spread of COVID-19. The language also eliminates an exemption for exclusion requirements following close contact for employees that previously had COVID-19 in the prior 90 days.

Similarly, the new language eliminates cleaning and disinfection requirements and, in lieu of face-covering requirements, requires employers to review CDPH and local health department recommendations and implement face-covering policies that effectively eliminate or minimize transmission in vehicles.

Testing After Exposure Slightly Changed
Under the current ETS, an employer is generally required to make testing available to all employees who had close contact with a COVID-19 case in the workplace with an exception for employees that previously had COVID-19 within the last 90 days. The new language replaces this exception language with the new term “returned cases” as described above. 

Other ETS Requirements Remain in Effect
Employers should keep in mind that, other than the changes discussed above, the rest of the ETS will remain in effect as well. This includes notification requirements following a COVID-19 case in the workplace and the obligation to maintain a written COVID-19 Prevention Program.

For more information, please see the links below:

Executive Order N-5-22

Guidance for Local Health Jurisdictions on Isolation and Quarantine of the General Public

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What do employers need to do?
Employers should carefully review the links provided above, as well as these changes to make necessary operational changes to their written COVID-19 Prevention Program and other pandemic workplace policies to comply with the ETS by May 6, 2022.

April 2022: Utah Amends Vaccination and Testing Requirements to Include Exemptions for Previous COVID-19 Infection

Update Applicable to:
All employers with vaccination mandates in the state of Utah.

What happened?
On March 22, 2022, Utah Governor Cox signed House Bill 63 (HB 63) into law, amending legislation passed in the Utah Legislature’s second special session of 2021 related to vaccine mandates in the workplace.

What are the details?
Effective on May 3, 2022, HB 63 expands the previous legislation by providing that employers who require an employee or prospective employee to receive or show proof that they received a COVID-19 vaccine shall be exempt from the requirement an employee or prospective employee who submits to the employer “a letter from the employee or prospective employee’s primary care provider stating that the employee or prospective employee was previously infected by COVID-19.”

This new exemption is in addition to the previously recognized requirement for employers to relieve an employee from a COVID-19 vaccination requirement/mandate:

  1. if receiving the vaccine would be injurious to the health and well-being of the employee or prospective employee;
  2. if receiving the vaccine would conflict with a sincerely held religious belief, practice, or observance of the employee or prospective employee; or
  3. if receiving the vaccine would conflict with a “sincerely held personal belief” of the employee or prospective employee.

Utah employers can still mandate vaccination as a condition of employment so long as they abide by the statutory exemptions when raised by an employee. To claim such an exemption, the employee or prospective employee must “submit to the employer a statement” indicating that receiving the vaccine would fall into the health and well-being, religious, or sincerely held personal belief categories described above, or submit a letter from a primary care provider stating that the employee was previously infected with COVID-19.

As did the previous legislation, HB 63 mandates that no adverse action can be taken against an employee because of an act the employee makes in accordance with the law. The new law defines adverse action as the refusal to hire, termination, demotion, or reduction of an employee’s wages. The new law expressly states, however, that reassignment of an employee is not an adverse action if the employee’s vaccination status is not the only reason for the reassignment.

Federal Contractors
In HB 63, the federal contractors are now considered employers subject to the law’s requirements. That said, the bill maintains that those subject to the Centers for Medicare and Medicaid Services (CMS) COVID-19 vaccine regulation, or “health care providers” as defined under state law that are participating providers for the CMS, are not employers for purposes of the law.

Employers May Require Proof of Vaccination Despite Exemptions in Certain Scenarios
HB 63 states that an employer may require an employee or prospective employee to receive or show proof that they received a COVID-19 vaccination without permitting them to invoke the exemptions discussed above if the employer:

  1. “establishes a nexus between the requirement and the employee’s assigned duties and responsibilities,” or
  2. the employer identifies an “external requirement for vaccination that is not imposed by the employer and is related to the employee’s duties and responsibilities,” and
  3. reassignment of the employee is not practical.

Previously, the law was applied in full except for employers with fewer than 15 employees that could establish a nexus between the vaccination requirement and the employee’s assigned duties and responsibilities.

HB 63 also provides that if a requirement imposed on an employer under the law substantially impairs the fulfillment of a contract entered into before May 4, 2022, to which the employer is a party, the requirement does not apply to the employer.

Testing Requirements
Like the prior law, HB63 requires employers to pay for all COVID-19 testing requirements placed on employees. It also expressly provides that employers may not keep or maintain a record or copy of an employee’s COVID-19 test results unless otherwise required by law.

For more information, please see the links below:

House Bill 63 (HB 63)

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What do employers need to do?
Employers should review the links provided above and make adjustments to their vaccination requirements and policies so that they are in compliance with the new law.

Vensure Employer Services, along with our source, Littler, suggests employers with ongoing questions related to HB 63 should consult with legal counsel to ensure their current practices are in compliance with the new requirements.

Tennessee Expands Employee Protections Relating to COVID-19 Vaccine Mandates

Update Applicable to:
All employers that require COVID-19 vaccinations in the state of Tennessee.

What happened?
On March 11, 2022, Governor Lee signed Senate Bill 1823 (SB 1823) into law, which expands protections for employees who are subject to employer COVID-19 vaccine mandates.

What are the details?
Effective March 11, 2022, the new Tennessee law provides that:

n employer that requires a person to provide proof of vaccination or requires an individual to receive the COVID-19 vaccine must grant the person an exemption to the policy if:

  1. the person provides a valid reason for a medical exemption supported by a statement that has been signed and dated by a licensed healthcare provider; or
  2. the person states that the person has a religious belief that prevents the person from complying with the policy.

For an exemption based on religious belief, the law prohibits the employer from requiring an individual to provide further proof beyond their initial statement to be granted an exemption. Notably, unlike federal law, there is nothing in this new law that enables employers to deny such exemption requests because the exemption would cause undue hardship for the employer or otherwise create a direct threat to the employee or others in the workplace.

Employers also are required to provide a response to requests for an exemption within two business days and must not deny a request without a written explanation explaining why the request was denied. The law further prohibits employers from discharging, threatening to discharge, or reducing the compensation of a person who requests and is granted an exemption.

For more information, please see the links below:

Senate Bill 1823 (SB 1823)

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What do employers need to do?
Employers should review the links provided above and review their COVID-19 vaccination policies to be in compliance with the new law

April 2022: Philadelphia Reinstates Mask Mandate Requirements

Update Applicable to:
All businesses that provide public indoor spaces in the city of Philadelphia, Pennsylvania.

What happened?
On April 11, 2022, the Philadelphia Department of Public Health announced that it has moved into the “Mask Precautions” pandemic response level and will reinstate the City’s indoor mask mandate for most indoor spaces.

What are the details?
Effective April 18, 2022, face coverings will be required in all indoor public spaces, including businesses, restaurants, government buildings, childcare settings, and schools. While masks will be required in indoor public places, there is no vaccine requirement for places that serve food or drink.

The mandate will remain in place until the city metrics fall into the “All Clear” category, which takes into account average daily COVID-19 cases, hospitalizations, and case increases over a 10-day period.

For more information, please see the links below:

Philadelphia Department of Public Health Announcement

COVID Response Levels

City of Philadelphia Article

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What do employers need to do?
Employers should review the links provided above and reinstate and/or adjust their masking policies to be in compliance with the reinstated law.