Another blizzard . . . of employment law updates! Vaccines, OSHA guidance, and legal wall art.

We’ve made it to mid-February. The Super Bowl is over, there’s way too much snow on the ground, but we’re still thinking about employment stuff! In this email, we’ll focus on (1) incentivizing employees to get the vaccine, (2) some fancy legal wall art, and (3) OSHA’s updated guidance on workplace safety (read: see, we told ya so!).

Let’s talk vaccines (again)

Last week, several business groups wrote to the Equal Employment Opportunity Commission requesting greater clarity on a hot issue: incentivizing employees to get the COVID-19 vaccine. What did the letter mention? Anti-discrimination laws and “wellness programs”. Huh? We’ll explain.

The EEOC’s recent guidance instructs employers to not offer more than “de minimis incentives” to incentivize employees to participate in a company’s wellness program if the program asks participants to provide medical information. Many companies are encouraging vaccination as part of their wellness programs. But vaccination requires employees to disclose certain medical information, so employees with medical issues that they’re reluctant to disclose might opt out of the wellness program. Thus, the appearance of discrimination. But if the incentives are “de minimis”, the appearance and impact of this potential discrimination drops.

So, employers need to be careful with incentivizing employees to get the vaccine because certain people may miss out on these incentives. Based on the EEOC’s definition of “de minimis incentive”, water bottles or low-value gift cards are fine. Gym memberships are not. Will the EEOC relax their standards or carve out an exception for COVID-19 vaccines? Stay tuned!

Decorate your walls with employment posters

Let’s talk posters! Not the rock band poster collecting dust in your garage, but employment posters. Several laws require employers to post a notice of employee rights in a conspicuous location – specifically, the Fair Labor Standards Act and Family Medical Leave Act. Other federal agencies (like the EEOC) and states like New York and New Jersey also have their own poster requirements.

Typically, you’ll see these posters in common areas like the break room, printer area, or conference room. But if your employees are all working remotely, or you have employees on-site but your walls are in need of some legal artwork, what can you do?

Generally speaking, you can email those notices to your employees so long as those employees customarily receive emails for work. Physical posters are still required if you have any on-site employees. Bonus points to employers who create an online portal with copies of the notices accessible to employees at all times (plus, it’s a good way to provide access to handbooks as well).

Not sure what posters you need? Reach out and we can help.

OSHA issues new guidance on COVID-19 workplace protections

OSHA recently published some updated guidance on COVID-19 prevention in the office (here). This is where we say: we told ya so! In large part, OSHA suggests that employers undertake the same safety measures that we’ve been advising our clients to do for months! Let’s take a look:

· Have written policies on screening, safety measures, and communicating with employees

· Designate a workplace safety coordinator to oversee safety measures

· Inform employees how they can raise complaints or concerns about workplace safety in a way that encourages feedback and prevents retaliation for “speaking up”

· Have a clear (and consistent) plan on how to respond to someone who appears symptomatic at work

As we’ve been saying, not only is this good practice from a health and safety perspective, it also sends the right message to your employees – that you take this seriously and are acting in their best interests.

As always, if you have questions, we’ve got some answers! Stay warm everyone.

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