In this episode of The Workplace podcast, CalChamber Executive Vice President and General Counsel Erika Frank and employment law expert Jennifer Shaw discuss what employers need to consider before mandating that their employees get the COVID-19 vaccine.

The recent distribution of the COVID-19 vaccine has sparked a lot of questions from employers and many of them are asking whether employees can be required to get the vaccine, Frank tells podcast listeners.

Because the COVID-19 vaccine is so new, employers may find it helpful to put employees’ minds at ease and direct them to the Centers for Disease Control and Prevention (CDC) website so that they may learn more about the safety measures taken for developing the vaccine and how its efficacy is evaluated, Shaw suggests.

Even though the vaccine is available, Shaw adds, it’s clear that reaching herd immunity is going to be a slow process that may not be achieved until 2022. So, it’s very important that employers remain diligent about social distancing protocols, she stressed.

This podcast was recorded on January 12. Listeners should be aware that given the unpredictability of the COVID-19 pandemic, information shared on this podcast episode may change at any time.

Problems with Mandating the Vaccine

While it is tempting to require that all employees take the COVID-19 vaccine in order to show up for work, Shaw cautions that there are a number of problems which employers must consider.

First, there will be some employees who will have a legitimate reason why they cannot get the vaccine — either for religious reasons or due to medical conditions. These situations will require that the employer commence the interactive process and maintain proper documentation. All of this takes a lot of time, and if half of an employer’s workforce asks for a reasonable accommodation, it can be a tremendous undertaking, Shaw explains.

Second, if an employee were to have a reaction to the vaccine, the employer may be liable for workers’ compensation claims because the vaccine was required in order to show up to work.

Third, mandating the vaccine holds morale implications. Some employees may hold strong reservations and opinions regarding the safety of the COVID-19 vaccine and vaccines in general.

“Do you want to create the morale issue that you’re going to have by forcing unwilling people to get the vaccine? Now, obviously a mandatory vaccine program doesn’t mean you’re going to drag them down to the vaccine station kicking and screaming, but they have to choose between the vaccine and a job — that’s really what we’re asking them to choose when we are talking about a mandatory vaccine program. So, there are morale implications, there are employee relations implications,” she says.

The last issue to consider is how the vaccine would be administered. Is the employer going to do it? If so, there are all sorts of medical documentation that will be required, so the employer would need to bring in a third party, which increases costs, Shaw explains.

Currently, there is no mandate that employers provide COVID-19 vaccines, and California is still following a hierarchy as to who can receive the vaccine first. So, while this conversation may be a bit early, these are still important things to consider, Shaw says.

Vaccine Not ‘Medical Exam’

The U.S. Equal Employment Opportunity Commission (EEOC) has stated that administration of the COVID-19 vaccine does not constitute a “medical exam,” Frank says.

This opens up the ability for any employer to develop a mandated program provided they deal with the reasonable accommodation issues mentioned earlier, Shaw explains. While the EEOC is giving employers the green light, it also is requiring that a protocol be put in place, with required documentation and employee communication.

“So, it’s not something like ‘Oh, I think I’ll just run my team down to CVS and get them a mandated COVID-19 vaccine.’ It just doesn’t work that way,” she says.

Employers should, however, encourage their employees to get the COVID-19 vaccine when it becomes available to them, similar to how employees are encouraged to get the flu vaccine during cold and flu season, Frank says.

If an employer, however, is thinking about making the COVID-19 vaccine a part of an incentive program, they should keep in mind that not all employees will be able to get the vaccine due to religious or medical reasons, Shaw points out. So, if an employer offers $25 to employees who get the vaccine, the employer should also offer the $25 to employees who cannot get the vaccine due to a legitimate health or religious reason.

As of this podcast recording, state agencies have yet to release guidance on COVID-19 vaccines in the workplace, so this is an evolving issue, Frank tells listeners.

Be sure to visit the CalChamber Coronavirus Resource page to stay updated on the latest COVID-19 news affecting your workplace at https://www.calchamber.com/coronavirus.

The post COVID-19 Vaccine: Can It Be Required? appeared first on HRWatchdog by HRWatchdog.

At-will employment in New York City’s fast-food industry is slated to come to an end this summer. An ordinance signed into law Jan. 5 requires employers to fire workers for “just cause” following progressive discipline, and prohibits significantly cutting employees’ hours.
Employers are exploring their options for mandating or encouraging workers to get COVID-19 vaccinations. They may even want to offer vaccines onsite when they are available. So can an employer be held liable if a worker has an adverse reaction to the vaccine?
A comment by a hiring manager, despite being made 12 years prior, that an employee did not need a higher starting salary because “her husband worked” can support pay discrimination claims, the 7th U.S. Circuit Court of Appeals held.

One new law that took effect on January 1 requires employers, who have 100 or more employees and are subject to federal EEO-1 reporting, to submit employee demographic and pay data information to the California Department of Fair Employment and Housing (DFEH). Recently, the DFEH released more updated FAQs addressing multi-establishment employers and calculating pay and hours worked. They’ve also announced when the new Data Submission Portal, as well as the User Guide and Template, will be available.

Since SB 973 was signed, the DFEH has been working hard to assist employers with meeting the March 31, 2021, reporting deadline, releasing incremental updates with additional information about the new law. (Read about initial guidance here and the second update here.)

On January 7, 2021, the DFEH updated their Pay Data Reporting website and FAQ page again with more details about the reporting process. Notably, the DFEH announced that it will be providing a pay data reporting User Guide and Template by February 1, 2021, and the Data Submission Portal will be available on February 15, 2021.

The updated FAQs address issues of calculating and reporting pay and hours worked, guidelines for multi-establishment employers and other important issues. For example, the DFEH clarified that when employers create their snapshot and assign employees to a particular pay band, employers should use Form W-2’s Box 5 (Medicare wages and tips) for reporting pay, instead of Box 1, which is what the federal Equal Employment Opportunity Commission (EEOC) uses. The new FAQs specify that employers should not calculate and annualize earnings for employees who didn’t work the entire reporting year.

The latest DFEH update also explains how to calculate hours worked for exempt and nonexempt employees and specifies that employers should include paid time off in the hours worked calculation, deviating from the EEOC, which required employers to exclude time on paid leave when calculating hours worked for the EEO-1 Component 2 collection from 2017 and 2018.

For employers with multiple establishments, the FAQ updates address specific issues and scenarios like what qualifies as an establishment for reporting purposes, establishment size, and what to do when some establishments are out of state or when an employee works at an establishment out of state.

Employers should continue to monitor the FAQ page for updates and look for the User Guide and Template on February 1, 2021.

Besides the California pay data reporting requirements, employers still have the federal EEO-1 reporting requirements to meet this year. The EEOC delayed its data collection in 2020 due to the COVID-19 pandemic, but recently announced in a press release that it will open the 2019 and 2020 EEO-1 Component 1 data collection in April 2021. Employers should monitor the EEOC’s new dedicated data collection website for precise opening dates and new submission deadline dates.

James W. Ward, Employment Law Subject Matter Expert/Legal Writer and Editor

CalChamber members can read more about EEO Reporting Requirements in the HR Library. Not a member? See how CalChamber can help you.

The post DFEH Updates Pay Data Reporting Guidance, Submission Portal Opening Soon appeared first on HRWatchdog by James W. Ward.

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As those who have been following AB 5 know well, in April 2018, the California Supreme Court issued a monumental decision related to independent contractor classification. Now, the court has held that the Dynamex decision is retroactive, opening up California businesses to millions of dollars of liability. 

In Dynamex Operations West, Inc. v. Superior Court, the courtheld that whether a worker is an employee for purposes of the California Wage Orders is determined by the “ABC test”. Under the ABC test, a worker is presumed to be an employee unless the hiring entity establishes all three of the following conditions:

  • (A) The person is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact.
  • (B) The person performs work that is outside the usual course of the hiring entity’s business.
  • (C) The person is customarily engaged in an independently established trade, occupation or business of the same nature as that involved in the work performed.

This Dynamex decision came as a large surprise to California businesses. For decades, California courts and state agencies had applied what is known as the Borello test for determining whether a worker was an independent contractor or employee for labor and employment purposes. The multi-factor test had been established in S.G. Borello & Sons, Inc. v Dept. of Industrial Relations in 1989 and looked primarily at whether the hiring entity had a “right to control” the manner in which the worker performed the contracted service.

Although Borello was technically not a Wage Order case, because the courts and California state agencies had relied on Borello to determine whether workers were properly classified for purposes of claims under the Wage Orders, any business seeking advice or guidance on this issue would be told to look to Borello and would have relied on that multi-factor test. Some businesses staked their entire business model on Borello and its wide acceptance by courts and state enforcement agencies as the applicable test for purposes of employment claims. Dynamex overturned decades of precedent in one fell swoop.

Now, employers have a second surprise — on January 14, 2021, the California Supreme Court held in Vazquez v. Jan-Pro Franchising International, Inc. that Dynamex is retroactive because the decision did not change any “settled rule” about what test applied to the Wage Orders and doing so is not “improper or unfair” to employers. The court explicitly rejected Jan-Pro’s argument that Dynamex should not be retroactive because it, and others, had reasonably relied on Borello in determining how to classify its workers, reasoning that employers had no reasonable basis for relying on Borello for Wage Order claims and claiming that Dynamex was not a “sharp” departure from the basic approach of Borello.

Even if the court is technically correct that Borello was not a Wage Order case, the court’s decision unfortunately does not reflect reality. Worse, it opens up businesses, that acted in good faith under the universally accepted Borello standard, to millions of dollars of exposure. The court’s Vazquez opinion states Dynamex applies retroactively to all cases “not yet final” as of the date of the Dynamex decision. Most claims for unpaid wages under the California Labor Code carry a three-year statute of limitations that can be extended to four years as long as the plaintiff also includes a claim under California’s Unfair Competition Law, plus the penalties that can be added to those claims under both the Labor Code and the Private Attorneys General Act. A business that relied in good faith on Borello can now be liable for not following the ABC test before the Dynamex decision was ever issued.

As for those that are exempted from Dynamex under AB 5, the Legislature should make it clear that the exemptions also apply retroactively. This would ensure that at least some businesses that reasonably relied on the once universally accepted Borello standard are spared from costly litigation.

Ashley Hoffman, Policy Advocate, CalChamber

Employers can learn more about AB 5 and subsequent legislation in CalChamber’s newly revised, free worker classification white paper, A Roadmap to California’s Worker Classification Law. Our white paper discusses California’s worker classification law as revised by AB 2257, including a detailed discussion of the ABC test, the common law test and the increasing number of exceptions carved out for various occupations and industries.

CalChamber members can read the white paper here. Not a member? See how CalChamber can help you.

The post Dynamex is Retroactive: California Supreme Court’s Rejection of the Reasonable Reliance Exception Ignores Reality appeared first on HRWatchdog by HRWatchdog.