Catapult Employment Law Updates

Catapult maintains a list of Federal, North Carolina and South Carolina employment law updates and information. Updated weekly with news of interest to Member employers. 

Should you have questions about how any of these legal updates may impact your particular organization, reach out to a trusted Catapult HR Advisor via email, chat or phone. You can also register monthly for the Answers at 8 webcast (Wednesdays at 8am) for detailed information related to employment law updates.

Public Employers may not mandate employee vaccination; neither may schools mandate student vaccinations. Public venues may not require vaccination proof for entry. Private employers  can mandate vaccination, but the religious and medical exemption requirement is strict (an individual need only provide a short statement that the requirement violates a tenet of their deeply held religious convictions, and the medical exemptions include pregnancy and the presence of COVID-19 antibodies). There is no detail on how antibodies would be confirmed or the length of time required between the test or previous positive case and the vaccination requirement. Federal contractors are exempt from this law; however it declares any future federal vaccination mandate unenforceable in SC and unconstitutional.

See USCIS release here. This program applies to EAD categories currently eligible for an 180 day automatic extension and applies an additional 360 days of extension time (for a total of up to 540 days) to eligible applicants with a timely-filed Form I-765 renewal application pending during the 18-month period after publication of the rule to address caseload back-up issues.

Flexibility in viewing I-9 documents remotely has been extended through Oct. 31st of 2022 due to COVID-19 (see past updates or link for details). 

See the original ICE news release from March 20, 2020, for more information – Flexibility is exclusive to individuals who are working remotely DUE to COVID-19.  In-person verification for those hired through remote inspection on or after March 20, 2020, will require in person verification within 3 days of return to the office (or before).

The DHS is proposing to changes to the I-9 form to include: compressing sections 1 and 2 to one page, expanding Section 3 to allow for multiple rehires, updating the List of Acceptable Documents, changing the PDF format to allow easier access and simplifying the instructions (from 15 to 7 pages). Comments are invited through May 31st. Members may follow this link for details and instructions:

Virginia has revoked its state OSHA COVID standard, and is now referring to the VA DOLI guidance here: https://www.doli.virginia.gov/wp-content/uploads/2022/03/DOLI-Guidance-for-Employers-to-Mitigate-the-Risk-of-COVID-19-to-Workers-03.01.2022_FINAL.pdf . While the guidance doesn’t take effect until after a comment period. DOLI reiterated the General Duty clause and indicated that employers could rely on the draft version for the time being.

 

The USCIS has announced that Form I‑94, Arrival‑Departure records, with admission (COA) codes for certain E and L nonimmigrant dependent spouses E‑1S, E‑2S, E‑3S, and L‑2S for nonimmigrant L spouses are acceptable as a List C, #7 Employment Authorization Document issued by the Department of Homeland Security.

The DHS is ending the COVID-19 Temporary Policy for List B Identity Documents. Beginning May 1, Employers will no longer be able to accept expired List B documents.
If an employee presented an expired List B document between May 1, 2020, and April 30, 2022, employers must update their Forms I-9 by July 31, 2022. If the employee is not currently employed, no action is required. If the List B document was auto-extended by the issuing authority (and not therefore expired at the time presented), no action is necessary.

While the OSHA Healthcare ETS ended, NC OSHA continued the provisions pending changes in cases and other measures. As of March 4th, NC OSHA is no longer mandating that employers continue following the OSHA healthcare ETS guidelines.

Biden signed new legislation ending forced arbitration for sexual harassment at the workplace. This applies to claims arising on or after March 3rd. Arbitration agreements will no longer be binding should an employee choose to file a sexual abuse or harassment claim in state, federal or tribal court. 

The CDC provided a website to assess local risk and determine what safety standards are necessary at varying levels of risk. The new risk analysis takes into account factors such as unreported home tests. OSHA has not fully updated its guidelines; therefore employers should use caution in relaxing their requirements.

Governor Roy Cooper announced that masks could be voluntary as of  March 7th, understanding that many counties may have alternative requirements and the CDC and OSHA have not updated their guidance. Employers should follow OSHA guidance to avoid risk.

Recently, the NC DOL updated its website stating that while NC adopted the OSHA Healthcare ETS verbatim, the end date for the federal ETS was not adopted by the state, and based on current COVID-19 trends in North Carolina, North Carolina’s rule will remain in effect through at least February 28, 2022. For details about who is covered by the ETS, and the requirements, this link is helpful. See Federal OSHA ETS question.

Starting January 30, 2022, certain federal contractors must have a minimum wage rate of $15 per hour. Beginning January 1, 2023, the wage rate will be determined annually by the Secretary of Labor. The rates will be published 90 days in advance. This article provides an excellent summary.

The DOL has increased fines for poster non-compliance. A detailed article here. Remember that posters should be in a common location where all staff can see them. Some posters must be visible to applicants as well. Remote postings are often a best practice in the current work environment. Catapult’s revised posters will be mailed to employers in March, 2022. PDFs are available at the bottom of this page for NC and SC.

Employers are not obligated to implement OSHA’s vaccine/testing Emergency Temporary Standard as SCOTUS has put its implementation on hold pending a full review by the 6th Circuit Court of Appeals.  Nonetheless, employers have an obligation under OSHA’s general duty clause to provide a safe workplace, which likely includes following the CDC’s guidance regarding COVID-19 safety protocols for businesses.  To the extent an employer would like to mandate COVID-19 vaccinations, consider state law requirements. 

In contrast, the Supreme Court ruled that employers who are subject to the jurisdiction of the Centers for Medicare and Medicaid Services (CMS) must follow that mandate, pending a full review by the 8th and 5th Circuit Court of Appeals.

The CDC has adjusted guidelines based on the latest Omicron studies. The latest timeframes are:

Isolation (for positive cases) –

All individuals stay at home 5 days & self-isolate from earlier of start of symptoms or positive test (CDC is not clear with current guidance, but past guidance suggests). If symptoms are resolving or not present and fever resolved, they can leave isolation at day 6 and continue to mask around others for 5 days. (Otherwise continue isolation.)

Quarantine (for exposure) – In all cases, if a test is positive, follow above guidelines from the start of symptoms or positive test whichever is earlier. If symptoms appear during quarantine, test and self-isolate at home.

Stay home 5 days, continue to mask 5 days. (If can’t quarantine mask 10 days). Test day 5 if possible UNLESS YOU MEET THE FOLLOWING EXCEPTION:

Boostered individuals or those with a Pfizer/Moderna vaccine in past 6 mos OR a J&J vaccine in past 2 mos: Mask for 10 days. Test on day 5 if possible.

 

OSHA has confirmed that as it has not issued a permanent standard to replace the Healthcare ETS, the provisions have ended. One exception is for employers with more than 10 employees as of the effective date of the ETS – They must continue to maintain a COVID-19 log. 

Importantly, OSHA reminds employers that they will vigorously enforce the General Duty clause and states that the best way to show compliance with that clause is to continue complying with the Healthcare ETS voluntarily. (They strongly encourage this.) OSHA continues to work on a permanent/final healthcare standard which will not expire.

The OSHA ETS for employers with 100+ employees is back on. See our full alert here.

The DHS has extended the option of remotely viewing I-9 identification documents for employees hired on or after April 1, 2021 who work exclusively in a remote setting due to COVID-19-related precautions. Within 3 days of their resuming non-remote employment on a regular, consistent, or predictable basis, or 3 days of the end of this flexible option, the employer must view the original documents. 

The Fifth Circuit Court of Appeals has ended the nationwide injunction formerly imposed due to a Louisiana lawsuit brought on behalf of 14 states. The injunction will remain in place for 23 states (those 14 states, 10 other states already covered under a previous Missouri lawsuit, and Texas which recently issued its own injunction.) The states which must comply with the CMS mandate at this time are: California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Tennessee,  Vermont, Virginia, Washington, and Wisconsin.

A Georgia federal district court issued an injunction halting enforcement of Executive Order 14042 (the federal contractor vaccine mandate), stating that the plaintiffs are likely to show that the President did not have the authorization or authority to issue this type of mandate, which they argue goes beyond addressing efficiency in contracting, to cover issues of public health as well. All federal contractors should be aware that they no longer are required to comply with the mandate and should also review state laws which might prevent some of the contractual requirements, now that the order is on hold.

The OFCCP has introduced a new online Contractor Portal which contractors must use to annually certify that they have developed and are maintaining an Affirmative Action Plan (first due date is June 30, 2022). In the past, the OFCCP has had no method for routinely verifying compliance with the requirement that certain federal contractors and subcontractors prepare an annual Affirmative Action Plan). Here are links to the OFCCP’s rollout timeline, and a Frequently Asked Questions; user guides and videos will be coming soon.

A federal judge has enjoined the Federal Contractor COVID-19 order from going into effect in Kentucky, Ohio and Tennessee. Contractors (for now) are not required to comply in those states. Employers should also review state laws. For example, in Tennessee private employers are prohibited from requiring employees to show proof of COVID-19 vaccination.

First, a federal judge in Missouri temporarily blocked the Centers for Medicaid and Medicare Services (CMS) COVID-19 mandate in 10 states: Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming. Soon after, a U.S. District court in  Louisiana, temporarily blocked the CMS from enforcing its vaccine mandate for healthcare workers until the court can resolve legal challenges. Healthcare employers should review state law if considering a vaccine mandate in these states and keep an eye out for legal updates.

The selection of the 6th court does not change the stay order put in place by the 5th Court at this time, and at this time, OSHA will not be enforcing the ETS until a further court order.

A multi-circuit “lottery” system will determine which circuit court will hear the multiple challenges to the ETS. This may result in another court being chosen which could potentially lift the stay.

Certain H-4 spouse EAD cards will be auto-extended by 180 days in some instances. L-2 spouses will not need EADs but will be authorized to work based on their L-2 status. This is a result of a settlement related to USCIS policies resulting in loss of employment authorization on the part of certain visa holder spouses. More information on the settlement agreement here.

The Federal government was given until the 8th of November to respond to the request for a permanent injunction.

401(k), 403(b) and 457(b) pre-tax contribution limits have changed to: $20,500; catch-up contributions stay the same: $6,500. More information here.

This emergency temporary standard requires certain safety standards to be met within 30 days, and full vaccination within 60 days of the ETS. The ETS will be in effect for six months and requires all companies with 100 or more employees to either mandate vaccination or require weekly testing. For details, see our alert.

This rule requires certain healthcare facilities that receive payments under Medicare and Medicaid to require staff to be vaccinated. The deadline aligns with the OSHA ETS (30 days – requires first dose of documented exemption; 60 days – 2nd dose required).

Compliance deadline for vaccination changed to January 4, 2022 to align with above rule/ETS.

This rule withdraws past guidance related to dual jobs and “related duties” and states that employers may only take tip credits for time when work performs work that is a part of a “tipped occupation” or perform work that directly supports tip-producing work, provided that such support work is not performed for a substantial amount of time. This is defined as 20% of workweek. For any continuous period of time any supporting work exceeding 30 minutes may not be considered for the tip credit and would be excluded from the 20% calculation.

This ordinance expands the definition of sex discrimination to include sexual orientation, gender identity and gender expression and expressly states that race discrimination includes discrimination on the basis of a protected hairstyle that is typically associated with race including hairstyle, hair type and hair texture.

A final rule makes it clear that tipped employees who perform directly supporting work (related to tipped duties) for a substantial amount of time should be paid at minimum wage for that time. The DOL defines a substantial amount of time as either: (a) more than 20 percent of the tip credited hours in the workweek for which the employer has taken a tip credit; or (b) more than 30 continuous minutes. Work that is NOT in support of tipped work always must be paid at minimum wage or above.

Ensuring Adequate COVID Safety Protocols for Federal Contractors. The original date of required vaccination was December 9, 2021. This was adjusted to January 18, 2022 (for full vaccination) to align with a newer OSHA ETS for companies with 100 or more employees. For more information on this topic, see Catapult’s summary.

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