OSHA Announces New Emergency Temporary Standard on Vaccination and Testing
November 2, 2021. OSHA announced a new Emergency Temporary Standard on Vaccination and Testing (ETS). You can view the standard here. OSHA said the ETS “is necessary to protect unvaccinated workers from the risk of contracting COVID-19 at work.” See Fact Sheet. Generally, private employers with 100 or more employees firm- or corporate-wide are covered by the ETS. State and local government employers may be covered too. However, certain employees under covered employers may not have to follow its provisions. Employers covered by the ETS are required to, among other things:
- Adopt a mandatory vaccination policy or adopt a policy requiring unvaccinated workers to undergo weekly testing and wear a face covering to work;
- Provide paid time for workers to get the COVID-19 vaccine and provide workers paid sick leave to recover from any side-effects that prevent them from working.
- Require employees to promptly provide notice of a positive COVID-19 test or are diagnosed with COVID-19.
- Immediately remove an employee who received a positive COVID-19 test or is diagnosed with COVID-19 from the workplace until return-to-work criteria are met.
- Ensure each employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes (with limited exception).
- Provide each employee with information about requirements of the ETS and workplace policies and procedures established to implement the ETS within a specified period. The notice must be in a language and at a literacy level the employee understands.
- Businesses that do not comply may face fines.
- The deadline for compliance with most provisions of the ETS is by 30 days after the date of publication in the Federal Register, and comply with testing requirements by 60 days after publication.
For questions and help in complying with the ETS please contact our Firm.
U.S. Supreme Court Rules on LGBTQ Discrimination
On June 15, 2020, the United States Supreme Court held that Title VII’s prohibition on sex discrimination includes discrimination against persons who are gay or transgender. In Bostock v. Clayton County , the Court explained that it is impossible to discriminate against a person for being gay or transgender without discriminating against that individual based on sex. If changing the employee’s sex would result in a different determination by the employer, then a Title VII violation has occurred. The employee’s sex does not need to be the sole or primary cause of the employer’s adverse action to violate Title VII. Further, employers cannot escape liability by discriminating equally against men and women, for example, by maintaining a policy under which both men and women are terminated for engaging in same-sex relationships.
What does this mean for employers? Your Title VII policy should already prohibit discrimination on the basis of sex. However, it may not be obvious to employees or managers that such a prohibition includes sexual orientation or transgender identity and expression. Explicitly including these terms in your policy can help ensure that everyone is aware of the proper standards. Further, it should be clear that employers cannot discriminate against employees for actions those employees take because they are gay or transgender. For example, employers cannot prohibit employees from engaging in relationships with members of the same sex or dressing in a manner that is not consistent with the employee’s biological sex.
Please contact us today if you need help updating your anti-discrimination policy or if you have questions about how the Supreme Court’s decision applies to you. Taking action now can help protect you from liability in the future.
Employer Alert—Families First Coronavirus Response Act will take effect April 1, 2020
Effective April 1, 2020, the Families First Coronavirus Response Act will take effect. This Act expands and amends several federal laws like the Family and Medical Leave Act of 1993 for the period of April 1 until December 31, 2020. Ultimately, it requires certain employers to pay leave to certain emplaoyeed and notify employees about expanded paid sick leave and expanded paid Family and Medical Leave Act leave rights. The Act was signed into law on March 18, 2020. Under this new law, businesses in the U.S. with fewer than 500 employees may also be eligible for funds to provide employees with paid leave for the employee’s own health needs or to care for family members.
Here is a quick summary of the law.
- The Emergency Family and Medical Leave Expansion Act (amends portions of the FMLA of 1993)
- The Law is applicable from April 1-December 31, 2020
- It applies to a private employer with fewer than 500 employees.
- An employee is anyone employed “for at least 30 calendar days by the employer”
- The Secretary of Labor has authority to exempt small businesses with fewer than 50 employees from the requirements of the Family and Medical Leave Expansion Act when “the imposition of such requirements would jeopardize the viability of the business as a going concern.”
- Certain health care providers and emergency responders may not be eligible employees and/or may be exempted from coverage.
- If the Emergency Family and Medical Leave Expansion Act and Emergency Paid Sick Leave Act applies, what does it require?
- Two week of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined and/or experiencing symptoms and seeking a medical diagnosis; or
- Two weeks of paid sick leave at 2/3 the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine or care for a child (under 18) whose school or child care provider is closed or unavailable for reasons related to COVID-19 and/or the employee is experiencing a substantially similar condition as COVID-19 (i.e., has been advised to self-quarantine, is subject to a Federal, State or local quarantine or isolation order related to COVID-19)
- An employee may be eligible for up to 10 additional weeks of paid expanded family and medical leave at 2/3 the employee’s regular rate of pay where an employee is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19
- Paid sick leave is available for an employee who:
- is subject to a governmental quarantine or isolation order;
- has been advised by a health-care provider to self-quarantine,
- is caring for an individual who is subject to governmental or self-quarantine,
- is caring for the employee’s child because the child’s school or child-care provider is closed, or
- is experiencing a substantially similar circumstance related to COVID-10 as specified by the Department of Health and Human services, in consultation with the Department of Labor.
- There are caps on total paid sick leave available to an employee depending on the reasons for leave related to COVID-19. For example, if the employee is subject to local, State, or Federal quarantine or isolation orders, the employee is eligible to be paid at her regular rate of pay up to $511 daily and $5,110 total. If the employee is caring for someone subject to self-quarantine or for a child due to school closure, the employee is paid 2/3 of her regular rate of pay up to $200 daily and $2,000 total. An employee who is eligible to receive 12 weeks of paid sick leave and expanded family and medical leave paid at 2/3 for caring for a child due to COVID-19 or school closure may receive up to $200 daily and $12,000 total.
- Paid sick time under the Emergency Paid Sick Leave Act may be used before other paid leave that may be available to an employee. Part-time employees are entitled to such paid sick time for the average number of hours the part-time employee works during an average two-week period. This paid sick leave may not carry over from one year to the next.
- Employers must provide “conspicuous notice” in the workplace of the emergency leave. Notices are available for free from the Wage and Hour Division of the US Department of Labor. Posters are available here.
- Employers who violate the emergency paid sick time requirements are subject to fines and imprisonment pursuant to the Fair Labor Standards Act of 1938.
- Employers are eligible to receive various tax credits for leave paid.
For more information about the Families First Coronavirus Response Act, please give us a call. Our attorneys are available to answer your questions about this new law.
Important Kansas Appellate Court Cases Decided June 4, 2019 (summarized by Kathleen S. Harvey, Associate Attorney)
Diana K. Hilburn v. Enerpipe Ltd., ___ Kan. ___, 2019 WL 2479464 (June 14, 2019)
The Kansas Supreme Court has issued a decision ruling that the noneconomic cap for damages in personal injury actions is facially unconstitutional. The case was brought by D.K.H. D.K.H. was injured in 2010 when a semi-truck collided with a car in which she was a passenger. A jury awarded D.K.H. $33,490.86 for medical expenses and $301.509.14 for noneconomic losses. However, D.K.H.’s award was reduced pursuant to K.S.A. 60-19a02, which placed a $250,000 cap on the maximum amount recoverable for noneconomic damages in personal injury actions. D.K.H. appealed, challenging the statute on the grounds that it violated Section 5 of the Kansas Constitution Bill of Rights. Section 5 states that “[t]he right of the trial by jury shall be inviolate.” The Kansas Supreme Court agreed with D.K.H. It held that the noneconomic damages cap under K.S.A. 60-19a02 violates the right protected by Section 5 because it intrudes upon the jury’s determination of the compensation owed personal injury plaintiffs to redress their injuries. This represents a departure from the court’s 2012 ruling in Miller v. Johnson, 295 Kan. 636 (2012), where it upheld the constitutionality of the cap.
State ex rel. Secretary v. Manson, ___ Kan. App. ___, 2019 WL 2479309 (June 14, 2019)
The Kansas Court of Appeals has issued a decision limiting a person’s ability to revoke a voluntary acknowledgement of paternity (VAP). A VAP “creates a permanent father and child relationship which can only be ended by court order.” Kansas law states that a person who wishes to revoke a VAP must do so before the child is one year old. However, the law also provides that a VAP merely creates a presumption of paternity which can be rebutted by clear and convincing evidence.
In the decision issued today, appellant T.M. executed a VAP acknowledging C.M. as his son because he believed he was C.M.’s father. Shortly after C.M.’s birth, T.M. discovered through a home genetic test kit he was not C.M.’s father. C.M. and his mother moved out of Manson’s home and Manson’s relationship with C.M. ceased. After moving out, C.M.’s mother applied for welfare benefits. The State requested child support for T.M. T.M. challenged the request on the basis that he was not C.M.’s biological father and asked the district court for genetic testing. The district court conducted a Ross hearing, which is a hearing that courts must conduct prior to ordering a genetic test to determine whether a presumed parent is a biological parent, and determined that genetic testing was not in C.M.’s best interests. The court concluded that T.M. should remain C.M.’s legal father. C.M. was two years old at the time.
The Court of Appeals held that if a man fails to revoke a VAP before the child turns one year old, then a permanent father and child relationship is created which cannot be rebutted. Because T.M. did not revoke the VAP before C.M. turned one year old, he became C.M.’s permanent legal father and any genetic test results were immaterial to that relationship. The district court did not need to hold a Ross hearing because there was no need for genetic testing. While the district court erred by conducting a Ross hearing, the Court of Appeals affirmed its ultimate decision maintaining T.M. as C.M.’s father. The court’s opinion contained language that VAP’s are intended to impose strict limitations on persons who execute them.
US court blocks overtime expansion pay rule for 4 million – On November 22, 2016, a Federal District Court Judge in Texas granted a preliminary injunction temporarily stopping the overtime rule from taking effect on December 1. If your business has already taken action, it may be hard for morale and other business reasons to change the reclassifications or raises. However, if nothing has taken effect yet, you may need legal counsel concerning whether to postpone those increases until the injunction is lifted or the issue of overtime is resolved.
Employers, don’t forget to let your employees vote! Kansas law provides that employees who do not have at least two consecutive nonworking hours on election day while the polls are open to vote, must be afforded time off to vote. The employee must be afforded two consecutive hours to vote without being penalized by his or her employer. Any time off to vote that coincides with the employee’s normal work hours should be with pay. For example, if the employee’s normal work hours are from 8 a.m. to 5 p.m. with a one hour lunch break, and the polls are open from 7 a.m. to 7 p.m., the employee may take time to vote from 7 a.m. to 9 a.m., taking one hour of paid leave. The employer may specify the particular time during the day which employees may leave to vote except the specified time shall not include any time during the regular lunch period. Intentionally obstructing an employee in his or her exercise of voting or imposing a penalty upon an employee for exercising his or her voting privilege is a class A misdemeanor. See K.S.A. 25-418. If you need legal advice, feel free to contact our firm to create or modify any leave policies regarding voting rights in the employment context or for employment law advice. To check on voting rights in other states, use this link. http://www.findlaw.com/voting-rights-law.html.
Does your employee handbook violate the National Labor Relations Act? On March 18, 2015, the National Labor Relations Board General Counsel, Richard Griffin, published a guidance memo on employee handbook policies. In it, he distinguishes “good” policies from “bad” policies. A copy of the memo can be obtained here http://www.nlrb.gov/reports-guidance/general-counsel-memos. However, some of the examples of policies that are legal are very hard to distinguish from illegal policies, and many of the illegal examples are all too common in typical employee handbooks. Our firm can advise you on whether your employee handbook policies are legal, and our attorneys are experienced in drafting and editing employee handbook policies too.
Overtime regulations will likely be changing. The United States Department of Labor announced a proposed rule that would extend overtime protections to almost 5 million white collar workers during the initial year of implementation. The rule will increase the standard salary measurement level for determining whether an employee is exempt from overtime requirements, among other things. The Notice of Proposed Rulemaking was published on July 6, 2015, and it invited interested parties to submit written comments on the proposed rule at www.regulations.gov on or before September 4, 2015. You can find out more information and a helpful Fact Sheet about the proposed rule here http://www.dol.gov/whd/overtime/NPRM2015/factsheet.htm. Our firm can help you wade through current overtime regulations and answer your questions about the proposed regulations and how to prepare for the impact on your business.
Employment Law – Intern or Employee?
You might have heard a story on NPR recently about unpaid and low-paid interns feeling exploited and choosing to sue their employers. Now is a good time for employers to review the U.S. Department of Labor Wage and Hour Division Fact Sheet #71: Internship Programs Under the Fair Labor Standards Act, which provides information to help employers determine whether interns must be paid the minimum wage and overtime under the Fair Labor Standards Act. You can find the fact sheet here.
For more information and to help protect yourself from potential liability for back wages and other remedies, please feel free to contact our Firm. We have represented a number of employers on employment law issues.