And the OSHA Vax or Test Rule is Off (Again)

Today, the U.S. Supreme Court put the brakes on OSHA’s mandatory vaccination and testing rules for private employers with at least 100 employees.  The Court ruled that OSHA exceeded its authority when issuing its Emergency Temporary Standard (ETS) requiring either mandatory vaccination or weekly testing and face masks. The Court noted that OSHA is charged with regulating hazards in the workplace, not “hazards of daily life.” Because COVID-19 can and does spread outside of the workplace, according to the Court, the risk OSHA seeks to mitigate cannot be considered an occupational hazard.

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Happy Holidays from Stearns Weaver Miller’s Labor & Employment Department!

As this year comes to a close, there is no better time to say thank you. Thank you for being a subscriber and joining us on this journey as we continue to navigate this ever evolving environment together. Wishing you a joyous holiday season and happy, healthy year ahead.

We hope that BeLabor the Point has brought you timely and important information throughout the year and a few smiles along the way.  Click here to view our firm’s virtual holiday card! 

SURPRISE, SURPRISE, SURPRISE! OSHA’s Vaccinate or Test Rule is Back (at least for now).

On Friday night, the Sixth Circuit Court of Appeals gave OSHA’s Emergency Temporary Standard (ETS) on COVID vaccination new life.  As you may remember, OSHA issued an ETS requiring employers with 100 or more employees to adopt a vaccination policy that either made vaccination mandatory, or gave employees a choice between vaccination or weekly testing.  The day after OSHA issued this ETS, the Fifth Circuit Court of Appeals entered an Order staying the ETS until further notice.

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Think Twice Before Paying Employee Wages in Bitcoin

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The working world has turned increasingly digital over the past two years. The nature of our workplace — how we meet, communicate, and commute – has made a rapid shift from the physical to the virtual, precipitated by COVID-related lockdowns and social distancing efforts. But what about how we are paid? Or more precisely, what we are paid?

Bitcoin and its numerous cryptocurrency cousins seem to be taking over the world. Little more than a year ago it seemed as if the jury was still out on cryptocurrencies; now, it is increasingly looking like they are here to stay, and bitcoin seems to be leading the way.

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Florida’s New Anti-Vaccine Mandate Law

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On November 18, 2021, Florida Governor Ron DeSantis signed HB 1B into law, which creates Fla. Stat. 381.00317 and imposes new limitations on private employers’ ability to mandate COVID-19 vaccinations in the workplace. The law is effective immediately, and now Florida employers must adapt. Here is what you need to know:

What does the new law require?

It requires private employers (regardless of size) adopting a vaccination mandate to provide their full-time, part-time, or contract employees the following exemptions to opt-out of the mandate:

  • “Medical reasons,” including, but not limited to, pregnancy or anticipated pregnancy. The employee must present to the employer an “exemption statement” that is dated and signed by a physician or physician assistant, or an APRN, who has examined the employee.  The statement must provide that, in the professional opinion of the physician, physician assistant, or APRN, COVID-19 vaccination is not in the best medical interest of the employee.
  • “Religious reasons.” The employee must present to the employer an “exemption statement” indicating that the employee declines vaccination because of a sincerely held religious belief.
  • “Covid -19 immunity.” The employee must present an “exemption statement” demonstrating competent medical evidence that the employee has immunity, documented by the results of a valid lab test performed on the employee.  The Department of Health shall adopt a standard for demonstrating competent medical evidence of immunity.
  • “Periodic testing.” An “exemption statement” must indicate that the employee agrees to comply with regular testing for the presence of COVID-19 at no cost to the employee.
  • “Use of employer-provided personal protective equipment.” An “exemption statement” must indicate that the employee agrees to comply with the employer’s reasonable, written requirement to use employer-provided PPE when in the presence of other employees or other persons.

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Stuck In The Middle With You

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Florida employers face conflicting federal/state legal obligations.

It can be tough to keep up. On Thursday of last week, the federal Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) establishing mandatory vaccination requirements for employers with 100 or more employees. The regulation was published in the Federal Register the next day.

The next day, a panel of the United States Court of Appeals for the Fifth Circuit issued an order staying the ETS, while the legality of OSHA’s authority to implement the ETS is litigated.

Finally, Governor DeSantis has called the Florida Legislature into a Special Session. It will begin on Monday, November 15, 2021, and go no later than Friday, November 19, 2021. Part of the call of the Special Session will include the consideration of legislation that would place substantial limits on a Florida employer’s compliance with the ETS, by mandating that employers implement broad categories of exemptions permitting employees to “opt out” of vaccination requirements, with substantial fines for violations.

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OSHA’s COVID Vaccination Rules – What You Need To Know

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We also discussed this in our Labor & Employment client alert here.

After much anticipation, OSHA finally issued its rule for mandatory COVID-19 vaccination and testing for certain employers. It is referred to as an emergency temporary standard (“ETS”). While the ETS will be challenged in the courts, employers must still prepare now for implementation as the first deadline for compliance is as early as December 5th. Here is what you need to know:

What’s new?

Covered employers must adopt a vaccination policy that takes one of two forms: (1) mandatory vaccination for all employees; or (2) a policy that gives employees a choice between vaccination or mandatory weekly COVID-19 testing and the required use of face coverings by unvaccinated employees (regardless of the reason why the employee declined vaccination). The rule also allows employers to adopt a hybrid policy that applies the mandatory vaccination provision to only certain employees (e.g., customer facing). Employers with mandatory vaccination policies must still provide exemptions for employees who cannot be vaccinated due to a medical reason, disability or sincerely held religious belief. However, even under a mandatory vaccination policy, weekly COVID-19 testing and required use of face masks still apply to those employees exempted from the policy as a reasonable accommodation.

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Employers with less than 250 employees: You now have to report all new employees and independent contractors hired!

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Employers with more than 250 employees have always been required to report “new hires”.  Effective October 1, 2021, however, regardless of how many employees an employer has, all Florida employers need to report new hires, and in addition certain “independent contractors” to the Florida Department of Revenue within 20 days of the employee’s hire date or in the case of Independent Contractors within 20 days of the earlier of the date a payment is made or the date a contract is entered into.  Employers can report electronically and by mail or fax.  This requirement also applies to rehired or recalled employees.  For reporting purposes, employers need only report individuals noted as “Independent Contractors” who are paid $600 or more per calendar year.

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Pssst – Tips Still a Headache

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The Fair Labor Standards Act (FLSA) allows an employer to pay a “tipped” employee less than the minimum wage, provided the tips the employee receives at least make up for the difference between what the employer pays and the statutory minimum wage.  The FLSA allows employer to take a tip credit of $3.02 per hour toward the minimum wage, meaning that in Florida, where the minimum wage is now $10.00 per hour, the employer must pay a direct wage of $6.98 to tipped employees.  So far so good.  Now the hard part. Continue Reading

Have You Checked Your Posters Lately?

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Effective September 30, 2021, the Florida minimum wage jumped to $10 per hour.  This is a significant increase from the previous $8.65 per hour and greater than the Federal Minimum Wage of $7.25.   Florida employers, both public and private, must pay their employees the higher of the two.

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