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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Long COVID: How to Manage Its Lingering Effects In The Workplace

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As millions of Americans continue to get vaccinated against COVID-19, it seems as if there is finally a light at the end of the tunnel.  For others who have contracted COVID-19, however, they are not as fortunate.  Some of these folks face a more harrowing journey because their symptoms persist and may be debilitating for many months after their diagnosis with the disease.  This condition is dubbed “long COVID,” and its victims referred to as “long haulers.”  An estimated 11.78 million Americans are coping with long COVID, and many of these individuals may be your employees.  What protections do these long haulers have in the workplace?

This month, the EEOC announced that it recognizes that “long COVID” may qualify as a disability under the Americans with Disabilities Act (ADA) in certain circumstances, agreeing with the Departments of Health and Human Services and Justice in their “Guidance on ‘Long COVID’ as a Disability Under the ADA, Section 504, and Section 1557.”

In my “Breaking Through The Noise: Labor & Employment Issues Post-Pandemic” segment, I explain the symptoms of “long COVID” and discuss issues employers may face under the ADA and the Family and Medical Leave Act (FMLA), when dealing with long haulers. Please listen to my segment (timestamp: 25:59-37:42), to check out the cartoon explaining what HR is likely going to experience and to join me as I put on my ADA/FMLA hats and answer the following questions:

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President Biden: Mandatory vaccines or weekly testing, or bust!

You heard the following directive yesterday from President Biden: Private employers with 100 or more employees must ensure their workers are vaccinated against COVID-19 or require unvaccinated employees to produce a negative test result on at least a weekly basis before coming to work.

Everyone should take a deep breath. Nothing is required at this point. The Department of Labor’s Occupational Safety and Health Administration (OSHA) is expected to issue an Emergency Temporary Standard (ETS), which will (hopefully) help applicable employers determine what is required and when. We anticipate that the ETS will require applicable employers to provide paid time off for the time it takes employees to get vaccinated or recover after receiving the vaccine.

In the meantime, these are some of the questions we are asking (we are sure you are asking them, too):

  • Who is paying for this?
  • What type of test will be required?
  • What about employees who work remotely?
  • Will the COVID-19 booster shot be included?

Until we hear more, we will just have to wait and see. But fear not, many businesses are already doing what might be required.

So breathe deeply (for now) and stay tuned! And, as always, feel free to reach out to our team with any questions. We will navigate this together.