Welcome to our November 2021 edition of AlphaStaff Monthly Compliance Updates!

We are pleased to highlight National and State Legal Updates and resources provided by some of AlphaStaff’s trusted legal partners to help guide and keep you in compliance.


Update: Path Out of the Pandemic

As discussed in AlphaStaff’s October Update, since President Biden directed OSHA to establish and publish an Emergency Temporary Standard (ETS) for COVID-19, the nation has been anxiously awaiting the agency to complete this task.  On November 5, 2021, OSHA finalized and published the ETS.  In quick succession, several employers filed lawsuits challenging OSHA’s authority to enact the ETS.  On November 6, a federal court issued a nationwide injunction blocking the ETS from taking effect pending a full review by the Court. On November 16, the federal Judicial Panel of Multidistrict Litigation announced that the Sixth Circuit Court of Appeals (usually covering disputes arising in Ohio, Michigan, Tennessee and Kentucky) was selected to decide the fate of the ETS in the coming days or weeks.

The circumstances surrounding this ETS are changing every day, and AlphaStaff will continue to provide updates as they become available. For more information, please click this link to check out AlphaStaff’s Comprehensive COVID-19 Vaccine FAQs.


Mandatory Employee Vaccines: National Legislation Tracking

Littler continues actively tracking as states update their mandatory vaccination legislation. As of this update, the following states have issued legislation regarding mandatory vaccination of either state workers or for some type of private employer: California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Kentucky, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Puerto Rico, Rhode Island, Virginia, Vermont, Washington, and Wisconsin. For more information, please visit this link.


Final Rule Affirms U.S. Department of Labor’s Power to Fine Businesses That Engage in Tip Theft

On November 23, 2021, a final rule addressing several amendments in the Fair Labor and Standards Act (FLSA) as it relates to tip pooling will become effective.  This move by the U.S. Department of Labor (DOL) reverses certain positions that were taken by the previous administration.  First and foremost, this rule restores the DOL’s authority to assess civil monetary penalties (up to $1,100 per violation) against employers unlawfully engaging in tip theft.  This final rule also has the potential to greatly impact managers who receive tips directly from customers.  Under this rule, managers or supervisors may only keep tips received from a customer when the tip is related to service “directly” and “solely” provided by them.  Consequently, if they were not the exclusive provider of service for the customer, then the tip may need to be contributed to the tip pool.  For more information, please visit this link.


DOL Publishes Final Rule to Resurrect 80/20 Rule for Tipped Employees

On December 28, 2021, the final rule reinstating the “80/20 Rule” governing how tipped employees must be compensated under the FLSA becomes effective.  This rule clarifies previously ambiguous FLSA definitions, but it also creates instances of ambiguity as it relates to applying the newly created “function test.”  The functional test categorizes the type of work a tipped employee performs during their shift into three groups (tip-producing, directly supporting, or not part of the tipped occupation) and changes the method of compensation for the employee based on the tasks are categorized.  It is imperative that employers review their current policies to ensure compliance with the new standard before the rule becomes effective.  For more information, please visit this link.


District of Columbia Amends Paid and Unpaid Family and Medical Leave Laws

The District of Columbia Council has passed the COVID Vaccination Leave Emergency Amendment Act of 2021.  Pending the mayor’s approval, this law will require employers to provide up to four hours of paid leave for employees to obtain the COVID-19 vaccine or accompany a child receiving the COVID-19 vaccine.  Employers will also be required to provide up to eight hours of paid leave to recover from any side effects experienced for each dose of the vaccine.  The amendment also provides updates to leave allowed under the District of Columbia Family Medical Leave Act (DCFMLA) For more information, please visit this link.


New Jersey Expands Age Discrimination Law by Removing Age Cap

Effective October 5, 2021, the legislature amended the New Jersey Law Against Discrimination (NJLAD) removing a provision that allowed employers to refuse to hire or promote a person over the age of 70 years old.  For more information, please visit this link.


New York Amends Definitions and Rules Under the Paid Family Leave Law

Effective January 1, 2022, the New York Paid Family Leave Benefits Law (PFL) will expand the definition of the term "family member" to include biological siblings, adopted siblings, half-siblings, and stepsiblings.  The current definition of "family member" under the PFL is limited to child, parent, grandparent, grandchild, spouse and domestic partner.  A rule was also adopted removing the 60-day cap that existed for employees taking their paid family leave intermittently.  This revision will only impact employees that work more than five days in a work week by allowing them to take additional intermittent leave under the PFL.  For more information, please visit this link.