AR’s End-Around to Biden Mandate

New Arkansas legislation specifically allows employees to opt out of COVID-19 vaccine requirements besides the medical or religious exemptions allowed by federal law. Rather than being vaccinated, a covered employee has the option to:

  1. produce a negative antigen test or molecular diagnostic test no more than one time per week; or
  2. provide proof of immunity, including the presence of antibodies (from a past COVID-19 infection), twice per year.

The law provides that if multiple proven test processes are available to an employee, the employee may choose which test is taken. Accordingly, an employee who has had COVID-19 might opt for providing proof of antibodies twice per year rather than submit to weekly testing.

Under new law, the cost of testing shall be covered through “any state or federal funding made available,” including federal relief funds disbursed from the American Rescue Plan Act, if the employee’s health benefits plan does not provide coverage for the testing. Only in the event that neither of these sources cover the cost of testing will the cost of testing be covered by the employee.

Although the law states that an employee who complies with the requirement “shall not be terminated for mandates related to [COVID-19],” it is not intended to alter any other agreements or affect the employment-at-will doctrine.

Because the legislation did not attain emergency status, it will go into effect in early 2022.

TX Legislature Fails to Pass Vaccination Ban

The Texas Legislature ended its third Special Session this week without passing a bill to enact Gov. Abbot’s Executive Order prohibiting employers in the state from mandating vaccination against COVID-19. However, the “non-mandate mandate” is not over. The Governor’s Executive Order is legally binding and still stands, subjecting employers to penalties if they do not comply.

Clarification on HIPPA Coverage

Some employers believe that they cannot ask about vaccination status because it violates HIPAA. However, the Privacy Rule governs only “covered entities”, which are:

  1. health plans;
  2. health care clearinghouses; and
  3. health care providers that conduct standard electronic transactions (and to some extent to certain business associates of covered entities).

Even if your organization is a covered entity, the Privacy Rule does not apply to employment records, including employment records held by covered entities or business associates “in their capacity as employers.” Therefore, the rule does not prohibit an employer from asking whether an individual has received a particular vaccine, including COVID vaccines. So, you can ask about vaccination status and require proof of vaccination, but you must keep such information confidential.

OSHA Coming After States

While we wait for the OSHA emergency temporary standing (ETS) for Biden’s 100+ employer vaccination mandate, OHSA has settle the battle lines with states that do not intend to enforce the ETS. OSHA also has announced plans to revoke approval of the State Plans in Arizona, South Carolina, and Utah for their failure to adopt the Healthcare ETS, which could mean that they lose federal funding for safety and health and that OSHA would then take over those OSHA State Plans.

NY Says No to Drug Testing?

The New York Department of Labor (“DOL”) recently published guidance and FAQs entitled “Adult Use Cannabis And The Workplace – New York Labor Law 201-D” to address questions related to the Marijuana Regulation and Taxation Act (“MRTA”), which legalized marijuana use and possession.  New York employers may not refuse to hire, employ, discharge, or otherwise discriminate against someone who uses cannabis lawfully while off-duty and off-premises and while not using the employer’s equipment or other property.

This means:

  1. Drug testing for marijuana is not permitted except in very limited circumstances (e.g., the test is required by law);
  2. A drug test result cannot serve as a basis for an employer’s conclusion that an employee was impaired by marijuana;
  3. The smell of marijuana, by itself, is not evidence of “articulable symptoms of impairment.”

Severance Pay Required for Hotel Workers in NYC

On October 5, 2021, Mayor Bill de Blasio signed into law a requirement that NYC hotels pay non-managerial employees $500 in severance pay every week, for each week after October 11, 2021 that the employees remain laid off. This is in addition to any severance paid to employees for periods prior to October 11, 2021. The law is effective immediately and expires on June 1, 2022.

Under the new law, severance is capped at 30 weeks and the requirement to pay severance to an employee ceases when either (1) the employee is recalled, or (2) a closed hotel has recalled 25 percent or more of its employees by October 11, 2021 and reopens to the public by November 1, 2021. For those hotels that did not close completely, the only remedy to avoid severance appears to be a recall of all employees.

Note that the law only applies to hotels that with 100 or more rooms as of March 1, 2020, and which closed or engaged in a mass layoff of over 75% of their employees on or after March 1, 2020. Only non-managerial hotel employees who were employed by the hotel on March 1, 2020, and who had been employed by the hotel for at least a year by that date, are eligible for the new severance pay.

Reminder from IRS

The IRS is reminding employers that the next quarterly payroll tax return is due Nov. 1, and employers should consider filing the returns electronically for speed and convenience. IRS acknowledges receipt of e-filed returns within 24 hours, and electronically filed returns reduce processing time and have fewer errors.

Employers also should be aware that the credit for qualified sick and family leave wages has been extended and amended, along with the Employee Retention Credit against certain employment taxes equal to 50% of the qualified wages an eligible employer pays to employees. IRS also is encouraging employers to inform employees about advance payments of the Child Tax Credit, providing access to e-posters, drop-in articles, and social media posts to deliver this information.

MN Workers Comp Insurers Don’t Have To Cover Medical Marijuana

The Minnesota Supreme Court said workers’ compensation payers do not have to reimburse for medical marijuana because the drug remains illegal under federal law. Two such rulings reversed lower court decisions that held that employers and insurers had to pay for medical marijuana to treat work-related injuries.

Written by: Gordon M. Berger, Partner 

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