On March 11, 2021, the U.S. Department of Labor (DOL) announced a proposal to rescind the independent contractor final rule. The final rule was published on Jan. 7, 2021 and is scheduled to become effective on May 7, 2021. The DOL’s position is that adopting the rule would significantly weaken worker protections under the Fair Labor Standards Act (FLSA).

Although the final rule’s effective date has technically not yet been canceled,  this proposal signals the DOL’s intention to roll back the worker classification test established by the rule at the end of President Donald Trump’s administration.

As a result, employers should continue to monitor DOL communications on this topic for updates regarding worker classification obligations.

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On December 22, 2020, the U.S. Department of Labor (DOL) published a final rule to amend employee tip regulations under the Fair Labor Standards Act (FLSA). The final rule was scheduled to take effect on March 1, 2021; however, on February 26, 2021, the DOL delayed the rule’s effective date to April 30, 2021.

Portions Approved to Take Effect – After reviewing the rule for consistency with law and policy, the DOL announced that it will allow provisions that increase worker protections and earnings to take effect in April, including provisions that:

• Prohibit employers (including managers and supervisors) from keeping their employees’ tips, regardless of whether the employer takes a tip credit; and
• Allow employers that do not take a tip credit to include non-tipped workers (including cooks and dishwashers) in nontraditional tip-sharing agreements.

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In this issue of the Remote Work Newsletter, we cover the following topics:

• 5 Ways to Beat Work-from-Home Burnout
• Building Strong and Meaningful Virtual Connections

To read the entire newsletter, click the following link: Remote Work Newsletter – March/April 2021.  This newsletter was written in an employee-facing format and can be used in your company’s communication plans.

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In response to the coronavirus (COVID-19) pandemic, states have passed new laws and issued new regulations and guidance about employee leave taken for COVID-19 reasons. These provisions are in addition to the federal Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act, passed on March 18th as part of the Families First Coronavirus Response Act (FFCRA).

In general, employee leave permitted under new state COVID-19 rules and guidance varies with respect to factors like which employers and employees are covered by the leave, the length and purpose of the leave, whether the leave is compensated and at what rate, and whether the leave is provided under a new law or rule, or covered under an existing provision.

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With vaccines rolling out across the country and millions of Americans preparing for a post-COVID reality, research suggests that many people would rather continue working from home than returning to the office. A new ‘Return to Workplace Survey’ from Envoy has found that 66% of employees say that they fear for their health and safety, and nearly 48% say they would prefer a hybrid schedule in which they can continue to work from home a few days a week.

But is the desire to continue working virtually rooted in a fear of the virus or is it a preference for flexibility and the ease of working at home?

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Yes, employers are generally allowed to ask workers if they have been vaccinated. Companies are often times interested in employees’ vaccination status because it sheds light on return to work and social distancing planning, customer and co-worker safety, and possible employer-provided incentives for employees to get vaccinated.

The Equal Employment Opportunity Commission (EEOC) has provided guidance indicating that not only can employers ask about vaccination status, employers can also ask for proof.

In situations where the employer is asking for employees’ vaccination status, we recommend the following:

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On Friday, Feb. 26, 2021, the Equal Employment Opportunity Commission (EEOC) released its enforcement and litigation data from the 2020 fiscal year. The agency resolved 70,804 charges in 2020 and secured $439.2 million for victims of employment discrimination. Among their efforts, EEOC employees fielded over 470,000 phone calls and responded to more than 187,000 field office inquiries, including 122,775 online submissions.

According to the EEOC, the following are the top 10 reasons for workplace discrimination claims in fiscal year 2020:

1. Retaliation—37,632 (55.8% of all charges filed)
2. Disability—24,324 (36.1%)
3. Race—22,064 (32.7%)
4. Sex—21,398 (31.7%)
5. Age—14,183 (21.0%)
6. National Origin—6,377 (9.5%)
7. Color—3,562 (5.3%)
8. Religion—2,404 (3.6%)
9. Equal Pay Act—980 (1.5%)
10. Genetic Information—440 (0.7%)

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The COVID-19 pandemic has been raging for months. In that time, many businesses have ceased operations out of safety concerns and have waited for the right opportunity to resume. Now, with COVID-19 vaccines becoming available, employers can finally start planning for their immediate futures.

There are still many unknowns related to the COVID-19 vaccines, but there is at least one agreed-upon factor: Vaccinating employees is the best way to reopen a business safely. However, while it may be the best tool in the arsenal, it is not the only one. Employers will still need to continue using safeguards such as masks and social distancing to ensure the safety of their workers and customers.

New Toolkit: With that in mind, we recently released an HR Toolkit that explores the COVID-19 vaccines and other workplace safeguards, and helps employers decide whether a vaccination policy is right for their organizations. Included at the end is a robust appendix with printable resources that employers can use right now, including policies, communications and more.  Click the following link to read or download the HR toolkit on Returning Workforces and COVID-19 Vaccines.

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