Vaccine Passports for the Workplace?

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Vaccine passports seem to be the hot button issue of the day.  Most of the media coverage and remarks from politicians have focused on businesses requiring customers, guests or students having proof of vaccination before returning to school or entering the business establishment.  But what about employers?  Can an employer require a new employee to present proof of vaccination as a condition of employment or provide a hiring preference to applicants who have been vaccinated?

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Florida Provides Sweeping Pandemic Liability Protection for Businesses

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During this pandemic, Florida businesses are caught between a rock and hard place.  If they open too soon, they risk lawsuits from customers claiming they acquired COVID-19 at their business.  If they remain closed or operate at limited capacity, they face the possibility of going out of business.  Fortunately, relief has arrived in the form of new legislation creating a liability shield.  This legislation, signed by Governor Ron DeSantis on March 29, 2021, protects covered entities from civil liability if they can demonstrate a “good faith effort to substantially comply” with authoritative or controlling government-issued health standards to prevent the spread of COVID-19.   If the entity can demonstrate it made a good faith effort, it is immune from civil liability.

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ADA Remote Work as a Reasonable Accommodation – It’s Time to Dust Off Those Interactive Process Hats!

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Until recently, having a pre-existing medical condition bumped you to the front of the line for eligibility to receive a COVID-19 vaccine in Florida. But as of yesterday, April 5, all Floridians age 18 and older are now eligible to receive a vaccine.

As a result, I suspect in the next few months management will sound the “all clear” and request their employees return to the office. I also suspect management will see a push-back from employees with disabilities who will continue to request “work from home” as a reasonable accommodation. If you have any doubt, consider this:

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What to Expect from the White House Gender Policy Council

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On March 8, President Biden issued an Executive Order (“EO”) On Establishment of the White House Gender Policy Council (the “Council”). The purpose of the Council is to promote gender equity and equality with the goal of advancing equal rights and opportunities regardless of one’s gender or gender identity.  The EO seeks to promote workplace diversity, fairness and inclusion across the Federal workforce and military.

The President instructed the Council, comprised of cabinet secretaries and other high ranking government officials, to coordinate the Federal government’s efforts to advance gender equity and equality by developing policies and programs to combat systemic discrimination including sexual harassment, increase economic security and opportunity by addressing structural barriers to women’s participation in the labor force, address caregiving needs of American families, promote gender equity in leadership, address the needs of women and girls arising from the COVID-19 pandemic and promote gender equity and combat stereotypes in education, including STEM fields.   The Council is responsible for submitting a recommended strategy to the President within 200 days addressing the Council’s goals and objectives as outlined in the EO and for providing annual updates thereafter.

While focused on the public sector, we all understand these issues permeate our society.  Employers may find the Council’s recommendations instructive on how to improve their workplace environments.  Hopefully this is the beginning of a renewed effort to address this systemic challenge we face as a society both in the public and private sectors.

The New PRO Act Provides Insight into Labor Priorities

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Predictably, the pendulum of labor law will swing to the left over the next several years.  The first sign was the recent passage of the Protecting the Right to Organize (“PRO”) Act by the U.S. House of Representatives.  While this law has virtually no chance to pass the Senate without filibuster reform, it serves as good insight into the immediate goals of the labor movement.

If enacted, the PRO Act would represent one of the most dramatic changes to US labor law in decades.  The biggest change would be a provision allowing unions to override current “right-to-work” laws in 27 states by allowing contracts mandating the payment of union dues.   However, that is just one portion of the sweeping legislation.

The PRO Act would expand the current authority of the National Labor Relations Board (“NLRB”).  For example, it would allow for the NLRB to levy “meaningful” monetary penalties to companies and executives found to have violated workers’ rights, and expands the NLRB’s injunctive powers to allow for immediate worker reinstatement while a case is pending.  In addition, the PRO Act provides the NLRB with the power to enforce its own rulings without any ruling from the Court of Appeals.  The PRO Act also seeks to shift the balance in election outcomes by prohibiting employers from requiring employees to attend “captive audience meetings” prior to union elections, and giving independent contractors the right to collectively bargain as employees.  Finally, the PRO Act changes the nature of post-election labor negotiations by forcing employers to reach quick agreements on first contracts or face arbitration where even economic terms could be decided by a third-party.

In short, employers should not dismiss the passage of this legislation by the House simply because it is unlikely to become law.  The PRO Act clearly illustrates the goals organized labor will seek to achieve in the short term one way or another.

All In A Day’s Work – Correctly Paying Employees Who Are Working From Home

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It’s hard to believe that I’ve been working from home for an entire year. I almost cannot believe what I’m writing! And I know I’m not alone.

In the midst of the pandemic, so many of us are working from home. And not just working from home, but a good number of us are juggling virtual school for our children while we work at home. (Please send wine!) Although I do not have a crystal ball (I wish I did!), I think by the summer or fall we will all have some relief (fingers crossed!).

Until then, many parents are continuing to deal with child care issues and working from home. Because of this and for varying reasons, many employees are working more flexible schedules from home. For example, to assist with virtual school, an employee may be working between 6:00 a.m. and 9:00 a.m., between 3:00 p.m. and 6:00 p.m., and between 9:00 p.m. and 11:00 p.m.

The question that employers consistently face is: How do we correctly pay non-exempt employees working flexible schedules from home? Here’s the answer—at least for now:

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State tax withholding and other obligations for remote workers. What you don’t know CAN hurt you. (PART 1)

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A year into the pandemic, many employees have fled their home states to work remotely out-of-state.  These employees have been working “remotely” in states in which their employers have no operations. So what’s the problem?

State and local taxes and employment laws, of course.

This blog is part one of a two-part post and will look at some of the tax and employment law issues that can arise when employees “work from home” in different states. Today, let’s discuss taxes. Next week, we will look at how state employment laws apply to remote employees.

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Some Things in Life are Free: EEOC’s Miami ADR Mediation Unit Upcoming Zoom Presentation

Accompanying most U.S. Equal Employment Opportunity Commission (EEOC) charges of employment discrimination is an inquiry from the EEOC’s Alternative Dispute Resolution (ADR) unit regarding whether an employer would like an opportunity through mediation to resolve the charge with its former or current employee. If both the employer and employee agree, the EEOC ADR unit will have one of its mediators assigned to work with the parties.

If you have not participated in an EEOC mediation (or have) and would like more information, the EEOC ADR unit is presenting a Zoom Webinar without charge to employers and employees.  Marvin Frazier, head of the EEOC’s Miami District Office’s ADR unit, asked me to provide the following information:

EEOC’s ADR Mediations – An Effective Remedy for Employment Discrimination Charges Resolutions

When: Friday, March 26th at 11:30am ET

Who: Mediators from the EEOC Miami District

What: You will learn how and why mediation is an effective tool for resolving employment discrimination charges.

Also, a discussion on how the agency’s mediation process works, the selection process, the way mediations are currently conducted and how it will change post-COVID-19, various types of resolutions, and more.

Where: Zoom.  Click here to register for this free webinar!

The 2021 Florida Legislative Session – The Graveyard for Employment-Related Proposals?

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Each year Florida legislators meet for just 60 days to propose and pass new laws. The Legislature is now in session through the end of April 2021.  A number of employment-related bills have already been introduced – many are first proposed to lay the groundwork for possible passage years down the road and others are just wishes that may never be granted. In the rush of business, most proposed bills end up in the legislative graveyard. However, it is always interesting to see what proposals, if passed, would affect Florida’s workplaces.

Here are just a sampling of some of the employment-related bills currently pending in Tallahassee:

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Pre-Season Predictions: Labor and Employment Under the Incoming Biden Administration

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The champagne was still flowing in the Alabama locker room on Monday night following their thumping of Ohio State in the College Football National Championship Game when sports media outlets began to publish their “Way Too Early” Top 25 polls for next season. It is a stark reminder that it is never too soon to look ahead. As the country gets set to swear in a new president next week, it is the perfect time to make some “pre-season” predictions about the changes the incoming administration might make to the labor and employment landscape.

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