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EMPLOYMENT LAW UPDATE

Watch for vaccine mandate and outcome of remote work lawsuit

By Mike O’Brien

 Watching for OSHA’s new vaccine mandate rule

President Joe Biden has instructed the United States Department of Labor Occupational Safety and Health Administration (OSHA) to develop an emergency rule that will require private-sector employers with 100 or more employees to mandate that their employees be vaccinated or receive a weekly negative COVID-19 test. Employers who fail to do so will face fines. In addition, regardless of employee headcount, OSHA will require all federal contractors to mandate vaccinations for their employees with no option for employees to receive weekly testing instead. Similarly, OSHA will require all employers in healthcare settings that receive Medicare or Medicaid reimbursement to mandate employee vaccinations, with no weekly testing option. President Biden’s announcement was welcomed by many business leaders but criticized by Republican lawmakers and governors, some of whom have threatened to challenge the mandate in court. The OSHA emergency rule will impact some 80 million private-sector workers, but OSHA may not issue it for another 30 to 60 days. Once in place, the emergency rule applies for six months but thereafter must be replaced by a permanent rule, subject to notice and public comment. Employers can prepare for it now by encouraging or incentivizing employees to get vaccines (or mandating vaccines when allowed) and getting ready to respond to accommodation requests based on factors such as disability, religion, and/or pregnancy.

EEOC files first COVID-19 remote work lawsuit

The Equal Employment Opportunity Commission (EEOC) has filed a disability discrimination lawsuit in Georgia federal court that may be a sign of litigation to come. As the pandemic started in March 2020, the involved plaintiff/employee asked for accommodation to work from home two days each week due to lung disease and other conditions. Shortly after, the employer placed all staff on work from home for four days each week. When the company required full-time attendance at the office again, however, the employee renewed her accommodation request due to her increased COVID-19 risk. The company denied the accommodation and then discharged the employee a month later. In the lawsuit that followed, the EEOC is attempting to use an employers’ previous remote working arrangements during the COVID-19 pandemic as evidence that employees should have been permitted to continue to accomplish the essential functions of employment in a remote capacity. If you had employees who successfully performed their essential job functions while working remotely, it may be much more difficult now to later argue that a requested accommodation of remote work is unreasonable or undue hardship. You should consult carefully with legal counsel before responding to accommodation requests in this context.

Flexibility on I-9 compliance extended for remote workers

U.S. Immigration and Customs Enforcement (ICE) has extended the flexibility in rules related to Form I-9 compliance through Dec. 31, 2021. This extension will continue to apply the guidance previously issued for employees hired on or after April 1, 2021, and who work exclusively in a remote setting due to COVID-19- related precautions. Those employees are temporarily exempt from the physical inspection requirements associated with the Employment Eligibility Verification until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier. However, the policy only applies to employers and workplaces that are operating remotely.

Reminder about new DOL FMLA model forms

Remember that the model forms recommended for use by the United States Department of Labor (DOL) for compliance with the Family and Medical Leave Act (FMLA) expired on Aug. 31, 2021. DOL issued new forms, which are available here, and are valid through June 30, 2023.

 

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