DOL updates its Field Assistance Bulletin to confirm that teledoc visits may qualify as medical visits under the FMLA

HR professionals are already well aware that the FMLA is triggered by, among other things, a “serious health condition,” which, oversimplifying, consists of (1) overnight “inpatient care” such as in a hospital, as well as “any period of incapacity” following such inpatient care and (2) “continuing treatment by a health care provider.” The FMLA regulations define the term “treatment” to include “examinations to determine if a serious health condition exists and evaluations of the condition.” See 29 CFR § 825.113(c). And further confirm that only “an in-person visit to a health care provider” will count towards considering “continuing treatment.” See 29 CFR § 825.115(a)(3).

Now, as so-called telemedicine (aka, “teledoc”) appointments become more popular, especially during the current pandemic, the DOL just updated its Field Assistance Bulletin to confirm that some teledoc appointments may count in-person “continuing treatment.”

To be considered an “in-person” visit, the telemedicine visit must include:
• an examination, evaluation, or treatment by a health care provider;
• be permitted and accepted by state licensing authorities; and,
• generally, should be performed by video conference.

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EEOC issues guidance on vaccines

The EEOC issued guidance on vaccines, as subpart K of its Technical Assistance (FAQ) regarding coronavirus. The EEOC’s FAQ is not regulatory, it does not carry the weight of law, and it did not reach any specific conclusions. Rather, it included the EEOC’s current thinking that:

  • It may become possible, as vaccines begin to be available, for an employer to mandate vaccination as a condition of entry into the workplace if the company can establish business necessity and that failure to impose the requirement would pose a direct threat of harm to others or that employee’s own health.
  • The EEOC noted it may or may not also be possible for an employer to mandate vaccination as a condition of employment. In other words, the EEOC said that, while some employers may be able to require vaccination as a condition of physically entering the workplace, to terminate an un-vaccinated employee would require a higher showing to prove business necessity and direct threat. For example, such an employer would have to prove the inability to allow the worker to take leave, to work remotely, etc.
  • In both instances, an employer would have to provide a reasonable accommodation for an employee who declines vaccination
    • Regarding a disability, under the ADA, unless the employer can prove undue hardship, i.e., that “there is no way” to allow the worker into the workplace or just to keep their job without the vaccine, to take leave, if not even to work remotely, and/or
    • Regarding a sincerely held religious belief, under Title VII, unless it would impose more than a de minimis cost or burden to the company to provide such an accommodation.

The EEOC recommends that employers consider, in all circumstances, using a third-party medical contractor that expertly advise workers, obtain informed consent, and manage any questions as well as the administration of the vaccine, and the exchange of any information regarding genetics, within medical confidentiality, such that the worker would, once vaccinate, simply provide the company with documentation of having been vaccinated, ensuring no confidential information is shared with the company.

Employers should first be aware that the EEOC does not have jurisdiction over and did not opine on other federal or state laws, which may well be thornier restrictions for employers who feel required vaccines are needed in their workplaces. Further, multiple states have already begun the process of debating whether to legislate or simply regulate in this area.

Finally, it should be noted that the EEOC was discussing vaccines that have been “approved or authorized” by the FDA. Currently no vaccines have been “approved” by the FDA, some have received an emergency use “authorization.” The EEOC did not discuss the fact that, in the fact sheet supporting the current authorizations, the FDA specifically stated: “It is your choice to receive or not receive the Pfizer-BioNTech COVID-19 Vaccine.” While that statement seems to be limited to a patient’s choice in terms of their own medical care — not their employment rights — that statement’s importance has not yet been analyzed by the EEOC (or the courts).

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DOL issues final rule on tip-pooling

The DOL has issued its final rule regarding tip-pooling. The DOL explains its revisions, as follows:

In this final rule, the Department:

  • removes the portions of the regulations that prohibited employers that do not take a tip credit from implementing mandatory “nontraditional” tip pools—that is, tip pools that include employees who do not customarily and regularly receive tips;

  • explicitly prohibits employers—regardless of whether they take a tip credit—from keeping employees’ tips for any purpose, which includes prohibiting managers and supervisors from keeping tips received by employees;

  • amends its regulations to state that an employer that collects tips to facilitate a mandatory tip pool must fully redistribute the tips no less often than when it pays wages to avoid “keep[ing]” the tips in violation of section 3(m)(2)(B);

  • incorporates the CAA’s new requirements regarding civil money penalties (CMP) into its regulations and revises additional portions of its CMP regulations to address courts decisions that have raised concerns;

  • incorporates a new recordkeeping requirement for employers that do not take a tip credit but collect employees’ tips to operate a mandatory tip pool;

  • codifies recent guidance explaining that an employer may take a tip credit for time that an employee in a tipped occupation performs related non-tipped duties either contemporaneously with or for a reasonable time immediately before or after performing tipped duties; the final rule also states that, in addition to the examples listed in the regulation, a non-tipped duty is presumed to be related to a tip-producing occupation if it is listed as a task of the tip-producing occupation in O*NET;

  • amends the regulations that address the payment of tipped employees under Executive Order 13658 (Establishing a Minimum Wage for Contractors) to reflect the corresponding changes in the FLSA regulations and to otherwise align those regulations with the Executive Order.

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CDLE issues yet more rules, now confirming the need to provide a fresh 80 hours of pandemic leave starting January 1, 2021

The CDLE has issued a new batch of rules and INFO sheets #6B and #6C confirming the need, in Colorado, to issue a fresh 80 hours of pandemic leave. In other words, an employee who has used, for example, 70 of their current 80 hours, will have their remaining 10 hours zeroed out at the close of 12/31/2020, then at the beginning of 1/1/2021, they will need to have their available paid leave requirements augmented to permit a fresh 80 hours; an employee who has used 10 of their current 80 hours, will likewise have their remaining 70 hours zeroed out and be given a fresh 80 hours as well. INFO 6C explains the basis for the requirement to provide this fresh 80 hours, and INFO 6B explains the basic requirements of Colorado 48-hour and 80-hour paid leave requirements under HFWA.

Employers should consider providing all Colorado employees with a copy of the CDLE’s poster and an explanatory memo. As explained in a previous post, employers should carefully craft the language of their memo to meet the other requirements posed in the CDLE’s HFWA rules.

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DOL expands religious exemption from EEO laws to federal contractors even if closely-held corporations

Continuing to expand on religious exemptions from EEO laws recognized by both the Supreme Court and itself, the DOL has expanded, in a final rule applicable to federal contractors, the religious exemption to now include even closely-held corporations so long as the company qualifies as a religious organization.

To qualify as religious a corporation, association, educational institution, society, school, college, university, or institution of learning may, or may not: have a mosque, church, synagogue, temple, or other house of worship; or be supported by, be affiliated with, identify with, or be composed of individuals sharing, any single religion, sect, denomination, or other religious tradition.

As an example, the DOL gives, in its rule, a small business that makes candlesticks for churches:

41 CFR 60-1.3(4)(i)(A) Example. A closely held for-profit manufacturer makes and sells metal candlesticks and other decorative items. The manufacturer’s mission statement asserts that it is committed to providing high-quality candlesticks and similar items to all of its customers, a majority of which are churches and synagogues. Some of the manufacturer’s items are also purchased by federal agencies for use during diplomatic events and presentations. The manufacturer regularly consults with ministers and rabbis regarding new designs to ensure that they conform to any religious specifications. The manufacturer also advertises heavily in predominantly religious publications and donates a portion of each sale to charities run by churches and synagogues.

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Will employers be able to mandate vaccines?

Wondering if employers will be able to mandate vaccines? Long story, short, we don’t yet fully know. It is likely that employers will be able to mandate vaccines — at least as a condition of entry into some workplaces if not as a condition of continued employment — so long as it is required by a business necessity and so long as appropriate opt-outs are permitted especially for religious or disability reasons. Employers with unionized workforces may need to engage in bargaining with their unions, first, unless clear and unmistakable language in the CBA already allows unilateral action. However, federal and state officials throughout the country have said they are currently analyzing the issue and hope to issue guidance soon.

In the meantime, if you’re looking for a couple good reads on the subject as an introduction to these issues, you may want to start with two thought pieces on the issues: one by Holland & Hart attorney Brad Williams available here and the other by SHRM available here. With regard to just the EEO laws, especially Title VII’s religious protections and the ADA’s disability protections, interested readers may also like to review the EEOC’s 2009 thoughts from the H1N1 pandemic, especially question 13. Again, though, hopefully the EEOC, along with the DOL and the various state and local agencies, will all be updating their guidance shortly within the context of the current coronavirus pandemic.  

Stay tuned for future updates as guidance becomes available. 

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Hah-hah, just kidding. Not so much, says Board

The National Labor Relations Board held a company in violation for its CEO’s joke on the CEO’s personal Twitter stream. The CEO of the company posted, “FYI (company twitter handle) first one of you tries to unionize I swear I’ll send you back to the salt mine.” The employees who submitted evidence agreed the tweet was a joke. The Board disagreed and held the tweet was on its face a threat of anti-union retaliation, even if cloaked in a purported joke.

“In viewing the totality of the circumstances surrounding the tweet, this tweet had no other purpose except to threaten the (company’s) employees with unspecified reprisal, as the underlying meaning of ‘salt mine’ so signifies.”

The company argued that the CEO had a First Amendment right to speak on his personal Twitter account, and the Board agreed but noted, in footnote 9, that the First Amendment does “not extend to threats made by employers to workers” in violation of the NLRA.

Source: FDRLST Media, LLC, 370 NLRB No. 49 (11/24/2020).

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CDLE issues more new information for Colorado employers

Implementing its most recent batch of rules on a variety of topics, the CDLE just issued yet more information for Colorado employers on those topics.

Are your ready for January 1, 2021?

  • Looking for more information about the CDLE’s latest batch of rules?

Join us for a complimentary, engaging and interactive webinar.

L2S Legal, LLC is recognized by SHRM to offer SHRM-CP or SHRM-SCP professional credits (PDCs). This program is valid for 1.0 PDCs.

When: Wednesday, December 16, 2020 Noon 12:00 PM Mountain Time (US and Canada) 

Register in advance for this webinar: https://us02web.zoom.us/webinar/register/WN_vGmrkeFcQ6iaM26Hg3iMGQ 

After registering, you will receive a confirmation email containing Zoom’s information for joining the webinar.

Where to find the CDLE’s latest information

The Colorado Department of Labor and Employment’s latest information is available at its website.

As noted in recent posts on this blog, look for the CDLE’s latest rules on its Rulemaking page, to include the following rules:

  • Colorado Overtime And Minimum Pay Standards (“Comps”) Order #37, 7 CCR 1103-1;
  • Wage Protection Rules, 7 CCR 1103-7;
  • Direct Investigations Rules, 7 CCR 1103-8;
  • Colorado Whistleblower, Anti-Retaliation, Non-Interference, And Notice-Giving (“Colorado Warning”) Rules, 7 CCR 1103-11;
  • Colorado State Labor Relations Rules, 7 CCR 1103-12; And
  • Equal Pay Transparency Rules, 7 CCR 1103-13.

Look for its latest posters on the CDLE’s Poster page (the following list is quoted from CDLE)

  • The “Colorado Overtime and Minimum Pay Standards” (“COMPS”) poster and notice, covering wage and hour law — see COMPS Rule 7.4, Posting and Distribution Requirements, unchanged from the 2020 COMPS Order, which requires employers to display the annually revised poster (and send it to off-site employees), plus include either the poster or COMPS itself in any handbook or manual the employer has.
  • The “Colorado Workplace Public Health Rights Poster: Paid Leave, Whistleblowing, & Protective Equipment” poster and notice, covering HFWA and PHEW since their enactment in July 2020 — see Colorado WARNING Rule 4, Notice and Posting Rights and Responsibilities, unchanged from the temporary WARNING Rules in effect since September 21, 2020, which requires employers to post and give employees notice of these rights.
  • Translations of posters and INFOs — to implement requirements for employers to provide posters and notices to non-English-fluent workers, DLSS in 2020 posted translations of its posters in 12 languages and Spanish translations of INFOs (on the same pages as the English posters and INFOs), with new translations of the 2021-updated posters to be posted later this month, and translations of INFOs coming thereafter.
  • With translations into Spanish and other language.

Look for informational summaries on the CDLE’s INFO page, where the CDLE provides the following information summaries (again quoting the CDLE):

  • INFO# 1: Colorado Overtime &, Minimum Pay Standards Order (COMPS Order) #37 [In Spanish:Hoja Informativa y Opinión Formal (INFO por sus siglas en inglés) # 1: Orden de COMPS #37] (Próximamente)
  • INFO# 2:DLSS Wage Claim Investigation Process
  • INFO# 3: Tips (Gratuities) and Tipped Employees Under Colorado Wage Law
  • INFO# 4: Meal and Rest Period
  • INFO# 5: Public Health Emergency Whistleblower Rights [In Spanish:Hoja Informativa y Opinión Formal (INFO por sus siglas en inglés) # 5: Ley de Protección al Denunciante de Emergencias de Salud Pública] (Próximamente)
  • INFO# 6A: Paid Leave Under the Healthy Families and Workplaces Act, through December 31, 2020 [In Spanish:Hoja Informativa y Opinión Formal (INFO por sus siglas en inglés) # 6A: Pago por Ausencia Laboral bajo el Acta de Familias y Lugares de Trabajos Saludables, vigente hasta el 31 de diciembre, 2020]
  • INFO# 6B: Paid Leave Under the Healthy Families and Workplaces Act, as of January 1, 2021 [In Spanish:Hoja Informativa y Opinión Formal (INFO por sus siglas en inglés) # 6B: Pago por Ausencia Laboral bajo el Acta de Familias y Lugares de Trabajos Saludables, a partir de 1º de enero] (Próximamente)
  • INFO# 7: Payment of Wages & Required Record-Keeping
  • INFO #8: Colorado Chance to Compete Act (“Ban the Box”)

The CDLE also invites interested individuals to sign up for the agency’s email alerts.

Highlights from the CDLE’s latest information

In recent posts, this blog has summarized a number of the CDLE’s latest rules. Some of the highlights from this most recent information just posted by the CDLE implementing its new rules includes the following:

  • INFO #1: The new hourly minimum wage in Colorado will be $12.32. The new minimum guaranteed salary for exempt workers will be $40,500.
    • Employers are reminded they must distribute a copy of the COMPS poster or the entire COMPS Order 37 (new for this year) with any policies/handbooks that are being distributed otherwise. Signatures must be obtained.
  • INFO #4: The CDLE has taken a strict approach to meals and rest periods, summarized in INFO #4.
    • Employers are responsible for not only “authorizing” workers to take breaks, but they must “permit” them to do so, and CDLE explains a rest break is “authorized” if the company has an adequate policy for example, but even if “authorized,” it is not “permitted” if the employee is “unable or discouraged” to take the break. Evidence that the employee is not “permitted” to take a break may simply be the employee’s own statement that they “felt pressure from the employer not to take the break.
    • It is the employer’s obligation, not the employee’s, to track and record and keep records of employee breaks. An employer cannot simply say it assumed the breaks were being taken as “authorized” where an employee claims not to have been “permitted” to take the break.
    • When a break is missed, it counts as work time, must be paid as such, even if that triggers daily or weekly overtime.
  • INFO #5: In its rules and now in its INFO implementing Colorado’s new PHEW law (already in effect), the CDLE has take the position that an employer who provides no PPE (mask) in a time of a public health emergency may not prohibit an employee from using an unsafe mask. PHEW allows employers to prohibit employees from using masks that do not meet the company’s requirements, only if — according to the CDLE’s interpretation — the employer has first provided its own mask to the worker. Employers should consider making appropriate disposable masks available in their workforces, so that they can later prohibit inappropriate masks that employees might otherwise wish to wear.
  • INFO #7: The CDLE summarized rules regarding the payment of wages, the establishment of pay periods, payment of final wages at separation, pay statement requirements and recordkeeping requirements.
  • INFO #8: The CDLE explained Colorado’s new ban-the-box law. Companies may not state in job applications or advertisements “that a person with a criminal history may not apply,” nor ask about the person’s criminal history on an application, nor require the applicant to disclose any criminal history on the application. Additionally, the CDLE says this prohibits an employer from stating that background checks will be required. Although an employer may require background checks as part of a conditional offer of employment, that may not be stated in an application or advertisement. The CDLE explains the limited exceptions available where employers are otherwise required by law to inquire into these matters.
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