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Employment Law Update

OSHA says cloth face coverings are not “PPE”

By Mike O’Brien bio

In an update to its FAQ, OSHA has stated that cloth face coverings do not constitute personal protective equipment (PPE). According to OSHA, there isn’t enough information currently available to determine if a particular cloth face covering provides sufficient protection from the coronavirus hazard to be PPE under OSHA’s standard. OSHA’s determination is consistent with statements made by the CDC.

This determination means that OSHA’s PPE standards do not require employers to provide cloth face coverings to employees. However, OSHA strongly encourages workers to wear face coverings when in close contact with others to reduce the risk of spreading the coronavirus, if it is appropriate for the work environment.

In addition, OSHA recommends that employers encourage workers to wear face coverings at work and even says that employers may choose to ensure that cloth face coverings are worn as a feasible means of abatement in a control plan designed to address hazards from COVID-19. Where cloth face coverings are not appropriate in the work environment or during certain job tasks (e.g., because they could become contaminated or exacerbate heat illness), employers can provide PPE, such as face shields and/or surgical masks, instead of encouraging workers to wear cloth face coverings. Click here for a news article, here for OSHA’s FAQ, and here for the CDC’s website.

Tax changes expected under Biden

Experts predict that the Biden administration will differ from Trump’s in several respects. Mr. Biden supports ending upfront tax breaks for contributing to traditional 401(k) plans and replacing them with flat-tax credits. Current tax benefits for retirement savings provide “upper-income families with a much stronger tax break for saving and a limited benefit for middle-class and other workers with lower earnings,” according to Biden’s campaign website. “The Biden plan will equalize benefits across the income scale, so that low- and middle-income workers will also get a tax break when they put money away for retirement.”

The Biden administration is also expected to implement automatic 401(k) enrollment, multiemployer pension plan relief (providing federally-backed loans to underfunded multiemployer defined benefit pension plans), and adjust social security payroll taxes. Mr. Biden is also expected to try to increase the number of employment-based visas, providing a path to legalization for the 12 million undocumented immigrants in the country and creating a new, decentralized immigration stream for foreign workers that is based on local employers’ needs as well as a new visa option for entrepreneurs.

EEOC issues proposed guidance for religious discrimination

On Nov. 17, the EEOC released a draft of a 114-page guidance manual on religious discrimination. The updated guidance describes ways that Title VII of the Civil Rights Act of 1964 (Title VII) protects individuals from religious discrimination in the workplace and sets forth the legal protections available to religious employers. According to the EEOC, its existing guidance was outdated in light of a string of major U.S. Supreme Court and appeals courts decisions that grappled with religious issues in the workplace.

The draft guidance discusses a 2014 Supreme Court ruling that said craft chain Hobby Lobby could refuse on religious grounds to pay for health insurance for employees that covered contraception. It also discusses a 2020 decision saying religious schools are exempt from anti-bias laws with respect to choosing their teachers, even those who do not serve an explicitly religious role, among other rulings.

Recent survey finds most employees want to return to work

Although COVID-19 cases are skyrocketing, according to a recent survey by Mercer (an HR consulting firm) more than half of employees are ready to return to the workplace, either on a full-time or hybrid basis. According to an Office Depot survey conducted in August, nearly 67% of 1,016 professionals prefer flexible hours and staggered in-person shifts. The Office Depot survey also looked at perceived risks: 58% of those surveyed say meetings and conference rooms as the biggest risks, followed by common areas (53%), bathrooms (49%), and desk or work stations (48%). In addition, more than half of respondents (55%) said they look forward to seeing their co-workers again. According to a Mercer representative, many employers plan to start bringing back workers in January, but returning employees hope to “come back to an emptier workspace. They only want to see four or five people walking around and feel safe.”

OSHA says cloth face coverings are not “PPE”

In an update to its FAQ, OSHA has stated that cloth face coverings do not constitute personal protective equipment (PPE). According to OSHA, there isn’t enough information currently available to determine if a particular cloth face covering provides sufficient protection from the coronavirus hazard to be PPE under OSHA’s standard. OSHA’s determination is consistent with statements made by the CDC.

This determination means that OSHA’s PPE standards do not require employers to provide cloth face coverings to employees. However, OSHA strongly encourages workers to wear face coverings when in close contact with others to reduce the risk of spreading the coronavirus, if it is appropriate for the work environment.

In addition, OSHA recommends that employers encourage workers to wear face coverings at work and even says that employers may choose to ensure that cloth face coverings are worn as a feasible means of abatement in a control plan designed to address hazards from COVID-19. Where cloth face coverings are not appropriate in the work environment or during certain job tasks (e.g., because they could become contaminated or exacerbate heat illness), employers can provide PPE, such as face shields and/or surgical masks, instead of encouraging workers to wear cloth face coverings. Click here for a news article, here for OSHA’s FAQ, and here for the CDC’s website.

 

 

 

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