With a surge in new COVID-19 variants, many employers are looking at their position on employee vaccinations. When asking employees about vaccination status some employers report hearing, “You can’t ask if I’m vaccinated. That’s protected by HIPAA.”
But according to Benjamin Mudrick, partner at Harter Secrest & Emery LLP, under Equal Employment Opportunity Commission (EEOC) guidelines and recent court decisions, employers can ask about their employees’ vaccination status. Speaking at a recent NationaLease meeting, Mudrick added that employers can even mandate that employees be vaccinated, but he added that ADA/Title VII accommodation requirements and confidentiality restrictions still apply.
The implications of the COVID-19 vaccine on the workplace was one of several topics. Mudrick touched on this during his presentation.
He also gave an update on the following employment law issues.
Exempt vs. non-exempt employees: “The fact that an employee receives a salary does not necessarily mean that he or she is exempt from overtime requirements,” Mudrick said. And he added that the employee’s title does not matter when making the determination about status.
To be exempt from overtime, an employee must meet at least one of these statuary exemptions: administrative, professional, executive, computer programmer, outside sales, highly compensation employee, other highly specific exemptions. There are steep consequences to misclassifying an employee including having to pay unpaid wages (including overtime), liquidated damages, interest, attorney’s fees, and court costs as well as civil and criminal penalties. Claims in most states can go back three years for willful violations.
“Now is the best time to review your classifications,” Mudrick told the audience. One more thing to note, non-exempt employees are entitled to pay for all time worked and that includes time to change into and out of work clothes, time to prepare equipment, time spent checking work emails at home, time spent performing work during mean breaks, and time spent traveling for work.
Sexual harassment: Sexual harassment and misconduct have been brought to the forefront of the national conversation. New York recently passed laws requiring employers to provide non-harassment training to all employees and adopt comprehensive non-harassment policies and making it easier for employees and others to file sexual harassment/sex discrimination claims, he explained.
Employee leave: If an employee is not covered by the Family Medical Leave Act or if FMLA leave has been exhausted, the employee may still be obligated to provide leave as a reasonable accommodation under the ADA.
Contractors vs. employees: This is an ongoing issue in trucking. Mudrick explained that whether an individual is considered an independent contractor, or an employee depends on very specific facts and circumstances.
If an employer misclassifies someone as an independent contractor the employer may be liable for unpaid wages including overtime, benefits contributions, taxes, unemployment, penalties from the Department of Labor, and worker’s compensation. In making the decision the main question that needs to be answered is: Does the employer maintain control (behavioral, financial, etc.) over the individual? Mudrick says factors that go into that decision include training, tool ownership, control of the work schedule, supervision, form of payment, reimbursement of expenses, if full-time work is required, etc.
Pay transparency: The National Labor Relations Act (NLRA) prohibits employers from setting pay confidentially policies and practices although there are some exceptions. Employers that have employees sign confidentially agreements need to make sure terms such as “personnel information” or “employee pay information” are not included, Mudrick said. It is best to avoid policies that cover when employees can and cannot discuss their pay.
Title VII: This prohibits discrimination and harassment in employment based on race, color, sex, religion, and national origin. The U.S. Supreme Court recently held that “sex” includes sexual orientation and gender identity.
Concerted Activity: This has bearing on employees’ social media posts. According to the NLRA, it may be illegal for an employer to have social media policies if employees would reasonably construe the language to prohibit the exercise of their rights under the NLRA; the policy was promulgated in response to union activity, or the policy has been applied to restrict the exercise of the employees’ rights under NLRA.
Restrictive Covenants: Non-competes, as they are often called, are generally disfavored in most states, Mudrick said, and are essentially banned in California. To be enforceable a non-compete must be necessary to protect the employer’s legitimate interest; be reasonable in time and area; not be unreasonably burdensome to the employee; and not be harmful to the general public.
There are many aspects to employment law. It is best to consult with an attorney that specializes in employment issues when creating company policies and procedures.
