What’s Happening in HR
Biden Administration Withdraws Proposed Rules on Incentives allowed in Wellness Programs
The EEOC rules on incentives allowed under the ADA and GINA for wellness programs are again going to be delayed. The rules would provide employers guidance on how much of an incentive an employee can be provided to take part in wellness programs, while still keeping participation “voluntary” as required under the ADA and GINA to collect certain information.
In December 2017, a district court vacated portions of the incentive rules then in force, but stayed the effect of its vacatur until January 2019. In December 2018, the EEOC published final rules removing the incentive portions that had been vacated. On January 7, 2021, the EEOC released a set of proposed rules regarding the incentives that would be consistent with the ADA and GINA. These latest proposed rules have now been withdrawn by the EEOC, so we do not know the content of any new proposed rules or when they will be proposed. Accordingly, what incentives are allowed under wellness programs remains unknown.
DOL Freezes Rule on FLSA Independent Contractor Test
The DOL’s new final rule on the independent contractor test under the FLSA was to go into effect on March 8, 2021. The DOL has delayed implementation of that rule to provide the agency with the ability to review that rule. It is unlikely that the DOL under the Biden Administration is going to allow the rule to go into effect without significant changes that would make it more difficult for an employer to classify a worker as an independent contractor.
On February 4, 2021, House and Senate Democrats again introduce the Protecting the Right to Organize (“PRO”) Act
The PRO Act was originally introduced in 2019, passed the House in 2020, but languished in the Senate. Among other changes to the law, the current Act would:
- Negate right to work laws by allowing unions to collect “fair-share fees” from those who are not union members, but benefit from union contracts;
- Narrow the definition of independent contractor so that more workers would be considered employees;
- Broaden the definition of joint employers making more employers subject to labor contracts and unfair labor charges;
- Prohibit the permanent replacement of striking workers;
- Mandate access to employer email systems for unionizing activity;
- Prohibit class action waivers in arbitration agreements; and
- Restrict the definition of supervisors so more employees would be entitled to unionize.
OSHA Issued Updated Pandemic Guidance
On January 29, 2021, OSHA issued guidance on Covid-19 issues called “Protecting Workers: Guidance on Mitigating and Preventing the Spread of Covid-19 in the Workplace. According to OSHA, “The guidance [ ] provides additional detail on key measures for limiting the spread of COVID-19, starting with separating and sending home infected or potentially infected people from the workplace, implementing physical distancing, installing barriers where physical distancing cannot be maintained, and suppressing the spread by using face coverings. It also provides guidance on use of personal protective equipment (PPE), when necessary, improving ventilation, providing supplies for good hygiene, and routine cleaning and disinfection.”
The Guidance is not an OSHA “standard” and is not specifically enforceable as such. That said, companies are still covered by the General Duty clause, which requires employers to furnish to each worker "employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm." There has been discussion of an emergency temporary standard for Covid-19, although one has not yet been issued.
The new guidance can be found at:
By Michael F. Weiner, JD, SHRM-SCP
NSHRM Legislative Director