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May 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
May 2022
New JerseyPayment of WagesMANDATORY
 April 2022 
Howard County, MarylandMinimum Wage and Overtime LawMANDATORY
Tucson, ArizonaMinimum Wage ActMANDATORY

May 2022: EEOC Updates Religious Accommodation and Vaccine Mandate Guidance

Update Applicable to:
All employers

What happened?
On March 1, 2022, the Equal Employment Opportunity Commission (EEOC) updated its guidance and answers regarding the ongoing COVID-19 pandemic’s interaction with anti-discrimination laws.

What are the details?

Employers may ask employees to explain how their religious beliefs conflict with COVID-19 vaccination requirements.
The guidance discusses the non-exhaustive factors to be considered when evaluating the sincerity or religious nature of a belief. Expanding on its previous guidance, the EEOC makes clear that employers “may ask for an explanation of how the employee’s religious beliefs, practices, or observances conflict with the employer’s COVID-19 vaccination requirement,” and refers readers back to Section 12 of its Compliance Manual on Religious Discrimination.

Many employers have had to grapple with whether an employee’s belief is indeed “religious” (and thus protected) or merely “political” (and thus unprotected). Importantly, the updated guidance states that there may be some overlap between the two: “verlap between a religious and political view does not place it outside the scope of Title VII’s religious protections, as long as the view is part of a comprehensive religious belief system and is not simply an isolated teaching.”

Employers must continue to make these determinations on a case-by-case basis and assess individual credibility when deciding whether to grant a reasonable accommodation.

Undue hardship may not be speculative or hypothetical.
The updated guidance also speaks to how employers should assess “undue hardship” on the business, adding in an important detail: in addition to warning against relying on “speculative” hardship, employers also cannot rely on “hypothetical” hardship when faced with an employee’s religious objection but, rather, should rely on objective information.” Accordingly, employers should carefully analyze the undue hardship on the business using objective, factually specific factors, and should not rely upon remote, speculative, or hypothetical possibilities to satisfy the “undue hardship” standard.

A reduction in pay or loss of benefits is not a reasonable accommodation if there are alternative accommodations.
While employers are not required to provide the employee’s preferred accommodation, the guidance notes that an employer’s accommodation will not be “reasonable” if it requires that the employee “accept a reduction in pay or some loss of a benefit or privilege of employment (for example if unpaid leave is the employer’s proposed accommodation) and there is a reasonable alternative accommodation that does not require and would not impose an undue hardship on the employer’s business.” This is a key clarification from the previous guidance, and employers proposing unpaid leave as an accommodation should first consider alternative accommodations.

As a best practice, employers should discuss the revocation of a religious accommodation with the employee before taking action.
The guidance notes that the obligation to provide religious accommodations is a continuing obligation, but also one that allows for change depending on evolving circumstances. An employee’s sincerely held belief may change, and the employer has the right to discontinue a previously granted accommodation if it is no longer for a religious purpose or it subsequently imposes an undue hardship on the employer. The guidance further clarifies that, “as a best practice, employers should discuss with the employee any concerns it has about continuing a religious accommodation before revoking it.” Thus, employers should consider engaging in a dialogue with employees prior to revoking any reasonable accommodations. Such conversations may provide an opportunity to discuss alternative accommodations or how to account for changes in circumstance.

For more information, please see the links below:

EEOC’s Guidance and Answers

Section 12 of the Compliance Manual on Religious Discrimination

Article

What do employers need to do?
Employers should review the links provided above and per our law firm source, Mintz, employers should continue to monitor these updates and assess how they might change company policy or practice.

May 2022: EEOC Issues a Delay on PEO EEO-1 Report Filings

Update Applicable to:
All clients who have active PEO contracts

What happened?
On March 25, 2022, the Equal Employment Opportunity Commission (EEOC) granted a request by the National Association of Professional Employer Organizations (NAPEO) asking for additional time to transition PEO clients that are required to file EEO-1 reports with the EEOC.

What are the details?
In response to NAPEO’s concerns regarding additional time for PEOs and their client employers to comply with the updated procedures for third-party human resource organizations, “please be advised that PEOs and (their PEO client employers) will have through Tuesday, June 21, 2022, to submit and certify 2021 EEO-1 Component 1 reports.”

Administrative services only (ASO) clients will still need to meet the May 17, 2022 deadline.

What do employers need to do?
PEO clients should take advantage of this extended time and begin the process of collecting data and preparing reports to file prior to the deadline.

Clients will not have to pull data reports. Vensure is currently working with Prism to pull the appropriate data.

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 Mid-Month Federal HR Updates

OSHA Launches Program to Protect Workers from Heat Hazards

Update Applicable to:
All employers with employees who work in locations that contain heat-related hazards.

What happened?
On April 12, 2022, the Occupational Safety and Health Administration (OSHA) launched its National Emphasis Program (NEP) for protecting workers from heat hazards in indoor and outdoor workplaces.

What are the details?
Effective since April 8, 2022, the NEP establishes heat priority days when the heat index is expected to be 80°F or higher. On those priority days, OSHA will:

  • Initiate compliance assistance in the targeted high-risk industries; and
  • Continue to investigate any alleged heat-related fatality/catastrophe, complaint, or referral regardless of whether the worksite falls within a targeted NEP industry.

The NEP encourages employers to protect their workers from heat hazards during heat priority days by providing them with access to water, rest, shade, adequate training, and procedures for acclimating new or returning employees.

The NEP targets over 70 industries that present a high risk for heat hazards. OSHA identified these industries based on Bureau of Labor Statistics and OSHA report data, which finds that high-risk industries exhibit the following:

  • High numbers or incidence rates of heat-related illnesses;
  • An elevated number of days away from work or high numbers of severe cases of heat-related illnesses;
  • The highest number of heat-related general duty clause violations and hazard alert letters over a five-year period; or
  • The highest number of OSHA heat inspections since 2017.

This program will remain in effect for three years unless canceled or extended by a superseding directive.

OSHA is also hosting a public stakeholder meeting on May 3, 2022, to discuss its initiatives to protect workers from heat injury and illness. The virtual event starts at 12 p.m. Eastern Time and will give people the opportunity to leave comments. You can register here.

For more information, please see the links below:

OSHA’s National Emphasis Program

OSHA Public Stakeholder Meeting Registration

OSHA News Release

Article

What do employers need to do?

Employers should review the NEP’s information provided above, review company safety protocols for employees working with heat-related hazards, and provide employees plenty of water, rest, shade, and adequate training and procedures for acclimating.

March 2022: Old E-Verify Records to Be Disposed After March 31, 2022

Update Applicable to:
All employers who use E-verify

What happened?
On April 1, 2022, the U.S Citizenship and Immigration Services (USCIS) will dispose of E-Verify records that are more than 10 years old, which are those dated on or before December 31, 2011.

What are the details?
USCIS annually disposes of E-Verify employer records that are 10 years old or older per the National Archives and Records Administration records retention and disposal schedule (N 1-566-08-7). This reduces security and privacy risks associated with the U.S. government retaining personally identifiable information.

To retain E-Verify case information, an employer (or their program or corporate administrators) may download and save the Historic Records Report, which includes:

• Company name and location;

• Initiated date and verification case number;

• Employee name and date of initial resolution;

• Date of additional resolution and final status; and

• Case closure date and case closure description.

Employers are required to record the E-Verify case verification number on the corresponding Form I-9, Employment Eligibility Verification or attach a copy of the case details page to the Form I-9. Employers should retain the Historic Records Report with each Form I-9.

For more information, please see the links below:

E-Verify Records Disposal Information

USCIS Article

What do employers need to do?
Employers should review the links provided above and follow the instructions on how to download records from E-Verify if they wish to retain any information that may be deleted.

March 2022: Planning Ahead and Posting Updates

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
ConnecticutPaid Family Medical LeaveANTICIPATED
IllinoisYou Have the Right to be Free from Job Discrimination and Sexual HarassmentANTICIPATED
IllinoisEqual PayANTICIPATED
LouisianaEarned Income CreditANTICIPATED
New HampshirePaid Family LeaveANTICIPATED
New JerseyWage TheftANTICIPATED
New JerseyEmployee MisclassificationANTICIPATED
New JerseySafe ActANTICIPATED
New MexicoHealthy Workplaces ActANTICIPATED
New YorkDiscriminationANTICIPATED
New YorkFair EmploymentANTICIPATED
New YorkElectronic MonitoringANTICIPATED
Puerto RicoMinimum WageANTICIPATED
Rhode IslandPay EquityANTICIPATED
Rhode IslandDiscriminationANTICIPATED
March 2022
OklahomaUSERRAMANDATORY
NevadaSafety and Health Protection on the JobMANDATORY
NevadaDepartment of Employment, Training, and RehabilitationMANDATORY

March 2022: Federal Contractors and Subcontractors Facing New, Mandatory OFCCP Registration, Certification of Affirmative Action Programs

Update Applicable to:
All employers with federal supply and service contractors and subcontractors that have 50 or more employees

What happened?
On December 2, 2021, the Office of Federal Contract Compliance Programs (OFCCP) announced the launch of its new “Contractor Portal,” which covered federal contractors and subcontractors (contractors) must use to certify, on an annual basis, whether they have developed and maintained an affirmative action program for each establishment and/or functional unit, as applicable.

What are the details?
Federal supply and service contractors and subcontractors that have 50 or more employees and one or more federal contracts or subcontracts of $50,000 or more are required to have in place (within 120 days of entering into a covered contract) a compliant affirmative action program for each employment location, including annual written affirmative action plans for women, minorities, individuals with disabilities, and for contractors and subcontractors with one or more awards of $150,000 or more, protected veterans.

For more information, please see the links below:

Contractor Portal Announcement

Article 1Article 2Article 3

What do employers need to do?
Employers that are applicable to this should review the links above and ensure they are in compliance with this update.

March 2022: U.S. Department of Homeland Security Rescinds COVID-19 Pandemic-Related I-9 Policy Change

Update Applicable to:
All employers

What happened?
On March 17, 2022, the U.S. Department of Homeland Security (DHS) is ending the COVID-19 Temporary Policy for List B identity documents.

What are the details?
Effective May 1, 2022, employers may no longer accept expired List B identity documents, such as a driver’s license or state-issued identification cards in the onboarding process.

Due to COVID-19, the DHS responded to the difficulty of renewing documents and permitted employers to accept expired I-9 List B identity documents as evidence of identity. Any employees who presented an expired List B document from May 1, 2020, and April 30, 2022, will need to revalidate their Form I-9 and present an unexpired identity document. Employees may present a valid unexpired document, a different List B document, or a List A document, such as a U.S. passport or green card. No action is required for past employees that have terminated during that time frame come May 1, 2022.

The United States Citizen and Immigration Services released a chart for employers to follow when revalidating Form I-9s in an announcement.

For more information, please see the links below:

USCIS Announcement

Article 1

What do employers need to do?
Employers should review the links above and ensure they are ready for the May 1, 2022, effective date and review any employees who presented expired List B documents between May 1, 2020, and April 30, 2022, and require them to revalidate their Form I-9 by presenting an unexpired identity document.

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