Manage Workforce Legally in 2022

UNLEASH
September 23, 2021
Managing Your Workforce (Legally)
in 2022
Presented by Laura Friedel, Peter Donati, and Becky Canary-King

Agenda
2
This webinar will cover…
02
05
01
04
03
Covid-19 in the
Workplace
Federal
Developments
Restrictive
Covenants
Other State Law
Trends
Equal Pay-
Focused
Requirements

Covid-19 in the
Workplace
• Plans for return to workplace were full
steam ahead for most employers…
and then the Delta variant hit
• The U.S. is recording roughly 150,000 new
cases of the virus and about 1,500 fatalities
a day, up from an average of 300 deaths
each day just a few months ago (Source:
SHRM)
• The focus is now turning to mandatory
vaccination policies – some employers are
acting on their own accord (e.g. United
Airlines, Disney, Tyson Foods, Fox News),
while others are being pushed
3

Mandatory Vaccination/Testing Requirements
• On September 9, 2021, President Biden announces 6-
point plan for fighting Covid-19
• OSHA to issue Emergency Temporary Standard for
private employers
o Exact requirements won’t be known until published
o May be in place for up to 6 months, after which OSHA will
need to implement permanent standard
o ETS expected to be released “in a matter of weeks”
o For states without their own OSHA state plan, could be
effective upon release. State plans will have time to comply
(could be as little as 15-30 days)
4

Mandatory Vaccination/
Testing Requirements
• Expected requirements of ETS for
private employers
o Apply to employers with 100 or more
employees
o Employees must be fully vaccinated or
tested weekly – employers will have a
choice
o Paid time off required for vaccination
or recovery from side effects of
vaccine
o Who will pay for testing? What proof
will be required? What will be record-
keeping requirements?
o Exemptions for religion and disability
5

• Any ETS issued by OSHA is likely to be attacked in the
courts
• OSHA must show that (1) employees are exposed to
grave danger from the hazard, and (2) the ETS is
necessary to protect employees from that danger
• In the 9 times OSHA has issued an ETS previously, the
courts have fully vacated or stayed the ETS four times
and partially vacated the ETS on a fifth occasion
6

• Nevertheless, private employers should act now to
begin to plan for mandatory vaccination requirements
o Draft policies so they are ready to go
o Testing or vaccination?
o Testing strategy/tracking of vaccination status
o Medical record collection and retention
o Accommodation obligations
o Wage and hour issues for vaccination and testing
o Collective bargaining issues
7

Mandatory Vaccination Requirements
• By Executive Order, Biden also requiring vaccination for
federal employees of Executive Branch and for federal
contractors. 75 days to get fully vaccinated.
Exemptions based on religion and disability.
• Centers for Medicare and Medicaid Services taking
action to require vaccination for workers in most
healthcare settings that received Medicare or Medicaid
reimbursements.
8

Mandatory Vaccination
Requirements
• Governor Pritzker executive order
o Covid-19 Executive Order issued on
Aug. 26. 2021
o Face coverings required in indoor
public places
o Employees and other persons working
in Health Care Facilities will need to be
fully vaccinated
o Must have the first dose of a two-dose
COVID-19 vaccine series or a single-
dose COVID-19 vaccine within 10 days
after issuance of the Executive Order,
and be fully vaccinated against COVID-
19 within 30 days following
administration of first dose in a two-
dose vaccination series
9

Mandatory Vaccination Requirements
o Proof of COVID-19 vaccination may be met by providing: (1)
a CDC COVID-19 vaccination record card or photograph of
the card; (2) documentation of vaccination from a health care
provider or electronic health record; or (3) state immunization
records
o Exemptions based on religion and disability
o Workers who are not fully vaccinated against COVID-19 must
be tested weekly, at a minimum, and beginning 10 days after
order cannot enter facility until proof of negative test
10

Mandatory Vaccination
Requirements
o Testing must be done using a test
that either has Emergency Use
Authorization by the FDA or is
being conducted per the
Laboratory Developed Test
requirements of the U.S. Centers
for Medicare and Medicaid
Services
o Testing must be conducted on-site
at the Health Care Facility or the
Health Care Facility must obtain
proof or confirmation from the
Health Care Worker of a negative
test result obtained elsewhere
11

Covid-19 in the Workplace
• City of Chicago rules
o Following Phase 5 guidance
o Masks required in indoor public settings. Masks can be
removed for certain activities (e.g. eating)
o Masks can be removed by employees in settings that
are not open to the public if employees are static and
maintaining six feet of distancing
12

• Some states moving in other direction…
o Montana prohibits private employers from discrimination
based on vaccination status; ND prohibits state government
from requiring private business to obtain vaccination
documentation
o Resource: www.nashp.org/state-lawmakers-submit-bill-to-
ban-employer-vaccine-mandates/
• Need to check state and local requirements in each
location where you have employees
13

Handling Accommodation
Requests
• Handling requests for
accommodations
o Expect employees to put forward
objections to vaccination on a
variety of grounds
o Law usually only requires
exceptions based on religion,
disability, and pregnancy
o Employers are typically familiar
with the medical accommodation
process, but what about religious
accommodations?
14

Handling Accommodation Requests
• Religious accommodations
o Sincerely held religious belief, practice or observance
prevents employee from receiving vaccination
o Does not have to be mainstream belief of religion, can be
newly acquired
o Can include firmly and sincerely held moral or ethical beliefs
o Personal beliefs that are essentially political, sociological, or
philosophical do not require accommodation
15

Handling Accommodation Requests
• Religious accommodations
o Accommodation can be denied if undue hardship, lesser
standard than ADA but still difficult to show
o An accommodation may cause undue hardship if it is costly,
compromises workplace safety, decreases workplace
efficiency, infringes on the rights of other employees, or
requires other employees to do more than their share of
potentially hazardous or burdensome work
16

Accommodation best practices
17
• Refer to Human Resources or someone trained to handle
• Start with assumption that request is valid
• Take each request individually and engage in interactive process
• Narrative explanation for religious exemptions
• Employer can ask follow-up questions and, for medical
accommodations, appropriate documentation
• Be mindful of confidentiality obligations relating to medical
information

Accommodation best practices
18
• According to EEOC, medical support for accommodation request
may be insufficient where “the health care professional does not
have the expertise to give an opinion about the employee’s
medical condition and the limitations imposed by it” or where
“other factors indicate the information provided is not credible or
is fraudulent”
• Employee should be given opportunity to provide missing
information

• Next up … the battle over booster shots
o On 9/17/21, an F.D.A. advisory panel voted against
approving a booster shot for people 16 and older who
received the Pfizer-BioNTech vaccine. The panel did
recommend a booster for Pfizer-BioNTech recipients who are
65 or older, or are at high risk of severe Covid-19.
o After getting ready for mandatory vaccination policies,
depending on actions of CDC and OSHA, begin to plan for
requiring booster shots if Covid-19 pandemic continues and
effectiveness of vaccines is shown to decline over time.
19

Covid-19 in the Workplace (Continued)
• Time Off Requirements
o Sunsetting of EFMLA, EPSL on Sept. 30
o State COVID leave (California, New York, Colorado)
o Expansion of existing leave
o Vaccination leave
• Recall Requirements
o California Right to Recall
o City requirements (e.g., NYC, Washington D.C.)
o Industry specific requirements
20

Covid-19 in the Workplace: Policy Implications
21
Return to Work (Voluntary
or Mandatory)
Vaccination & Testing
Policies
Remote Work Expense Reimbursement
Health and Safety
PTO/Sick Leave

Federal Developments
• Fair Labor Standards Act
o Independent Contractor Standard
o Joint Employer Standard
• Fair Credit Reporting Act
22

Federal Developments: Independent Contractor
Question: When can a worker be properly classified as a “non-
employee” / independent contractor?
January 7, 2021→ Trump DOL issues Final Rule that adopts the
“economic reality” test for purposes of the Fair Labor Standards Act,
which was seen as employer friendly. Final Rule was scheduled to
go into effect May 7, 2021
May 6, 2021→ Biden DOL withdraws the final rule, signaling that it
will be looking at independent contractor relationships with a closer
eye and lean toward employee status.
23

Federal Developments: Joint Employment
Joint Employment → When Separate Companies Can Be
Deemed to Both Be Employing the Same Employees
o Staffing Companies / Temp Agencies
o Affiliated Companies
o Subcontractor & Service Provider Companies
o Franchisees/Franchisors
March 2020 → Trump DOL made it harder to establish joint
employment under Fair Labor Standards Act
July 2021 → Biden DOL cited a decision from a NY court and
rescinded Trump DOL rule effective September 28, 2021
24

Federal Developments: Supreme Court
TransUnion v. Ramirez
o TransUnion issued a credit report for Ramirez, who was trying to
buy a car.
o The Report identified Ramirez as a suspected terrorist based
solely on the fact that his first and last names were the same as a
person of the federal government’s terrorist watch list, which
resulted in his being denied the car loan.
o Ramirez filed suit under the Fair Credit Reporting Act on his own
behalf and on behalf of a class alleging that TransUnion had
failed to use reasonable procedures to ensure the accuracy of
credit reports.
25

Federal Developments: Supreme Court
TransUnion v. Ramirez (cont.)
• The Supreme Court held that while Ramirez and other class members’ personal
information was shared with a third party had standing to sue, but that those class
members whose identification as potential terrorists hadn’t been shared with
anyone outside TransUnion could not because they had not suffered a “concrete
harm”
26
Why are we talking about a consumer rights case in an employment
law webinar????
• Limits who can file suit – and who can be a class member -- in Federal Court
• Class members must have experienced “concrete harm” in order to have standing
• Likely impact in employment-related class actions

Restrictive Covenant Developments
27
• July 15, 2021, President Biden issues wide-ranging Executive
Order intended to foster competition in the American economy
• The order “encourages” the Federal Trade Commission to use its
rulemaking authority to “curtail the use of non-compete or other
clauses or agreements that may unfairly limit worker mobility”
• Not clear what will be done by FTC or when
• Not clear FTC has authority to regulate non-compete agreements
given that these have never been regulated by FTC before and
have traditionally been subject to state law

Amendments to Illinois
Freedom to Work Act
28
• Signed into law on August 13, 2021
• Applies to agreements entered into on or
after January 1, 2022. It will not apply
retroactively
• New limits on who can be subject to a non-
compete or non-solicit agreement
(customer or employee)
o Non-competes banned for those making
$75,000 or less. Increases over time ($80k
1/1/27, $85k 1/1/32, $90k 1/1/37)
o Non-solicits banned for those making
$45,000 or less. Increases over time
($47.5k 1/1/27, $50k 1/1/32, $52,500
1/1/37)

Amendments to Illinois Freedom to Work Act
29
• Earnings limits continued…
o Applies to “actual or expected annualized rate of earnings”
o “Earnings” means salary, bonuses, commissions, tips “or any form
of taxable compensation” reflected on IRS Form W-2 plus “any
elective deferrals not reflected … such as, without limitation,
employee contributions to a 401(k) plan, a 403(b) plan, a flexible
spending account, or a health saving account, or commuter benefit-
related deductions”
• Special rules for enforcement with employees terminated or
furloughed due to Covid-19

30
• Codifies many aspects of current law. Agreements must be
supported by adequate consideration, be ancillary to a valid
employment relationship, be no greater than necessary to protect
an employer’s legitimate business interest, not impose any undue
hardship on the employee, and not be injurious to the public
• “Adequate consideration” means (1) employee worked for at least
2 years after signing or (2) other consideration adequate to support
an agreement “which can consist of a period of employment plus
additional professional or financial benefits or merely professional
or financial benefits adequate by themselves”

31
• Agreements depend on particular facts, but courts to look at
exposure to customer relationships or other employees; near-
permanence of customer relationships; acquisition, use, and
knowledge of confidential information; time restrictions; place
restrictions; scope of activity restrictions
• Blue-penciling permitted but not “wholly rewriting contracts”
o Fairness of original restraints
o Good faith effort to protect legit. bus. interest?
o Extent of reformation
o Whether parties included a clause authorizing reformation

32
• Employers required to advise employees in writing to consult with
an attorney and must be given agreement and 14 days to review
the proposed restriction. Employees can sign before 14 days. All
employers will want to revise their standard employee
agreements to include language covering this requirement.
• New fee shifting language – employees who win claims for
enforcement can recover costs and attorney’s fees
• Right for Illinois Attorney General to enforce plus private litigants
• Applies to “forfeiture for competition” agreements

33
• Does not cover confidentiality agreements, intellectual property
agreements
• Does not cover covenants in sale of business with owners
• Does not cover “garden leave” provisions
• Does not cover covenants prohibiting former employee from re-
applying to employer
• Covenants not to compete cannot be used with certain unionized
public employees and construction employees unless they perform
management, engineering or architectural, design, or sales
functions or are owners

Other non-compete
developments
34
• New laws regarding non-competes this
year:
o Oregon shortened post-employment
restriction period for non-compete from 18
months to 12 months, revised minimum
salary threshold, agreements to pay
employees otherwise excluded must be in
writing
o Nevada restricted use of covenants
restricting serving a client who was not
solicited and who voluntarily left prior
employer, made blue-penciling easier,
prohibits non-competes for hourly employees
• Laws being considered in 17 other states

Other State Law Trends: Criminal History
• Illinois Human Rights Act Amendments (eff. March
2021)
• Unlawful to discriminate based on prior convictions unless:
o “Substantial relationship” between conviction and the job or
o Employment poses an unreasonable risk to the property or the
safety or welfare of the employer and its employees
• New procedural requirements
o Must engage in “interactive assessment”
o Notice requirements and opportunity to respond
35

Other State Law Trends: Criminal History
(Cont’d)
• NYC Fair Chance Act Amendments (eff. July 2021)
• Expands fair chance process requirements
• Extends requirements to independent contractors and freelancer
• Bifurcated background check
• Expanding Ban the Box laws
• Next Steps
o Review hiring process and train HR staff
o Develop compliant notice procedures
o Review cause definition in employment agreements
o Review code of conduct/workplace disclosure policies
36

Other State Law Trends: Data Privacy
• Colorado Privacy Act & Virginia’s Consumer Data
Protection Act
o Requirements for companies that control or process
personal data of more than 100,000 residents
o Unlike California Consumer Privacy Act/ California Privacy
Rights Act, do not apply to employee data
• Biometrics / Device Implantation
o Latest device implantation law in Indiana (~ 10 states total)
o Lessons from explosion of class actions under Illinois’s
Biometric Information Privacy Act
37

Other State Law Trends: CROWN ACT
• “Creating a Respectful and Open World for Natural hair”
protect individuals from discrimination based on their hair texture
and protective styles such as braids, locks, twists, and knots
38

Equal Pay-Related Requirements
Amendments to Illinois Equal Pay Act & Related Laws
• Amendments impose new requirements – most of which apply to
employers with more than 100 employees in the state
• Requirement to obtain and maintain Equal Pay Registration Certificate
• EEO-1 filers must submit demographic information (substantially similar to
that in Section D of EEO-1) with annual corporate report to Illinois
Secretary of State beginning in 2023 (for publication on official website)
and to the IDOL as part of Certificate
• Right of employees to obtain name-blind information regarding pay of
others in their classification from IDOL
• Penalty of up to $10,000 per violation of certification/compliance
requirements; also increases fines for other violations
39

Illinois Equal Pay Act
• Equal Pay Registration Certificate
o Covered employers that are authorized to conduct business in
Illinois as of March 23, 2021 must apply for the Certificate between
March 24, 2022 and March 23, 2024, and recertify every 2 years
thereafter.
 Employers with 100 or fewer employees in Illinois must so-certify in
writing.
o To apply for the Equal Pay Registration Certificate, the employer
must:
 Pay $150 filing fee
 Submit wage records and an equal pay compliance statement to the
IDOL
40

• Equal Pay Registration Certificate (cont.)
o Wage record must include:
 List of all employees from prior year, separated by protected category as reported
in EEO-1 Report, and
 For each employee, their county of work, start date, and total wages paid in the
past calendar year
o Compliance Statement must include certification…
 Of compliance with the Equal Pay Act and other relevant laws
 That average compensation for female and minority employees is not below
average compensation for male and non-minority employees
 That the business does not restrict employees of one sex to certain job
classifications,
 That wage and benefit disparities are corrected when identified
 Of the approach used in setting compensation
 Of how often wages and benefits are evaluated to confirm compliance
41

• New Right to Receive Pay Information
o Current employees of a covered business may request anonymized data
regarding their job classification/title and pay for that classification
o No individually identifiable information is to be provided, but depending on
the business, it may be obvious
o Appears that request goes through IDOL, not employers themselves
o Need additional guidance from IDOL
42

Illinois Equal Pay Act – Key Takeaways
 No filing requirement immediately
 If you don’t currently complete the EEO-1, make sure that’s
appropriate
 Begin thinking about certification and steps to take to be prepared
 Think about pay transparency as a way to get ahead of employee
information rights
43

Colorado Equal Pay for Equal Work Act
• Took effect January 2021 and applies to all business with at least
one employee in Colorado
• Unique requirements around job postings/openings:
o Job Postings in Colorado - including for remote positions that could be
performed from Colorado - must include compensation range and benefit
information
o If you don’t already have employees in Colorado, consider providing in job
postings that job can’t be performed in Colorado
o Colorado employees must be provided with postings (including salary/benefit
information) for positions that could be seen as a promotional opportunity,
regardless of qualifications or whether “opportunity” is specific to another
employee. Positions to be performed outside Colorado must be provided
too, but compensation information isn’t required.
44

Other States
• Connecticut:
o Effective October 1, 2021
o Requires equal pay for “comparable” (not equal) work
o Employer must provide applicants with “wage range” either upon request or, if
not requested, prior to or at time of offer
o Employer must provide employees with “wage range” (a) upon hire, (b) on a
change in position, or (c) upon request
• Nevada
o Effective October 1, 2021
o Prohibits requesting or relying on wage history in determining pay
45

Becky Canary-King
rcanaryking@lplegal.com
312.476.7559
Peter Donati
pdonati@lplegal.com
312.476.7590
Meet Your Speakers
47
LPlegal.com
Laura Friedel
lfriedel@lplegal.com
312.476.7510

Manage Workforce Legally in 2022

Recommended

Recommended

More Related Content

What's hot

What's hot (20)

Similar to Manage Workforce Legally in 2022

Similar to Manage Workforce Legally in 2022 (20)

More from Levenfeld Pearlstein, LLC

More from Levenfeld Pearlstein, LLC (20)

Recently uploaded

Recently uploaded (20)

Manage Workforce Legally in 2022