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COVID-19 and Other Updates March 15, 2022
We hope everyone is well and has recovered from the Mardi Gras Celebrations! There are several HR trending topics that we would like to bring to your attention which could potentially impact your business operations in the coming months.
H.R. 2471, Funding for the People
The House passed another appropriations bill, H.R. 2471. This bill is essentially a shortened version of “Build Back Better,” which failed to pass in the Senate. It now moves to the Senate, and we will keep you informed on whether it passes. Read the division-by-division summary of the bill here.
OSHA Targets Unlikely Suspects in 2022
This year may be the year that your business gets visited by a federal workplace safety inspector. We wanted to share this interesting read with you, so everyone is aware of the top 5 employer takeaways as Fisher Phillips introduces their OSHA Inspections Tracker Map. Read the full article here.
Viewpoint: A Checklist to Prepare for the DOL’s Expansion of FMLA Audits
If your company is eligible for the Family and Medical Leave Act (FMLA), we encourage you to browse through this article for a great checklist to ensure your policy is updated and your business remains legal and compliant.
Below you’ll find some other updates we thought might be useful:
EEOC Updated COVID Accommodation Q&A
On March 14, 2022, the Equal Employment Opportunity Commission (EEOC) updated its Q&A to confirm that:
When making requests for a religious objection to receiving a COVID injection, employees do not need to use any “magic words,” such as “religious accommodation” or “Title VII.” However, they need to explain the conflict and the religious basis for it. As a best practice, an employer should provide employees and applicants with information about whom to contact and the proper procedures for requesting a religious accommodation.
The employer may ask for an explanation of how the employee’s religious beliefs, practices, or observances conflict with the employer’s COVID-19 vaccination requirement. Although prior inconsistent conduct is relevant to the question of sincerity, an individual’s beliefs—or degree of adherence—may change over time and, therefore, an employee’s newly adopted or inconsistently observed practices may nevertheless be sincerely held. An employer should not assume that an employee is insincere simply because some of the employee’s practices deviate from the commonly followed tenets of the employee’s religion, or because the employee adheres to some common practices but not others. No one factor or consideration is determinative, and employers should evaluate religious objections on an individual basis.
An employer will need to assess undue hardship by considering the particular facts of each situation and will need to demonstrate how much cost or disruption the employee’s proposed accommodation would involve. An employer cannot rely on speculative or hypothetical hardship when faced with an employee’s religious objection but, rather, should rely on objective information. Certain common and relevant considerations during the COVID-19 pandemic include, for example, whether the employee requesting a religious accommodation to a COVID-19 vaccination requirement works outdoors or indoors, works in a solitary or group work setting, or has close contact with other employees or members of the public (especially medically vulnerable individuals). Another relevant consideration is the number of employees who are seeking a similar accommodation, i.e., the cumulative cost or burden on the employer. See K.12 for additional considerations relevant to the undue hardship analysis.
The determination of whether a particular proposed accommodation imposes an undue hardship on the conduct of the employer’s business depends on its specific factual context. When an employer is assessing whether exempting employees from getting a vaccination would impair workplace safety, it may consider, for example, the type of workplace, the nature of the employees’ duties, the location in which the employees must or can perform their duties, the number of employees who are fully vaccinated, how many employees and nonemployees physically enter the workplace, and the number of employees who will in fact need a particular accommodation. A mere assumption that many more employees might seek a religious accommodation—or the same accommodation—to the vaccination requirement in the future is not evidence of undue hardship, but the employer may consider the cumulative cost or burden of granting accommodations to other employees.
An employer should consider all possible alternatives to determine whether exempting an employee from a vaccination requirement would impose an undue hardship. Employers may rely on CDC recommendations when deciding whether an effective accommodation is available that would not pose an undue hardship.
The obligation to provide religious accommodations absent undue hardship is a continuing obligation that allows for changing circumstances. Employees’ sincerely held religious beliefs, practices, or observances may evolve or change over time and may result in requests for additional or different religious accommodations. Similarly, an employer has the right to discontinue a previously granted accommodation if it is no longer utilized for religious purposes, or if a provided accommodation subsequently poses an undue hardship on the employer’s operations due to changed circumstances. Employers must consider whether there are alternative accommodations that would not impose an undue hardship. As a best practice, an employer should discuss with the employee any concerns it has about continuing a religious accommodation before revoking it.
WHD Proposes Amendments
The US DOL announced a notice of proposed rulemaking (NPRM). This notice updated the Davis-Bacon and Related Acts Regulations “to better reflect the needs of workers in the construction industry, and planned federal construction investments.”
The proposed changes include:
Creating several efficiencies in the prevailing wage update system and ensuring prevailing wage rates keep up with actual wages, which over time would mean higher wages for workers.
Returning to the definition of “prevailing wage” used from 1935 to 1983 to ensure prevailing wages reflect actual wages paid to workers in the local community.
Periodically updating prevailing wage rates to address out-of-date wage determinations.
Providing broader authority to adopt state or local wage determinations when certain criteria is met based on sound survey methodology.
Issuing supplemental rates for key job classifications when no survey data exists.
Updating the regulatory language to better reflect modern construction practices.
Strengthening worker protections and enforcement, including debarment and anti-retaliation
Other articles you might like to check out:
Employees Prefer to Work from Home – Until They Don’t
President Signs Bill Banning Mandatory Arbitration for Certain Claims
Have a great week!
Dave and Teresa