President’s Plan on Employer Vaccine Mandate

All employers with 100 or more employees would have to require that their workers be vaccinated or undergo at least weekly Covid-19 testing under a new plan announced by President Biden to curb the spread of the pandemic.

OSHA in the coming weeks plans to issue an emergency temporary standard implementing the new requirement, which will cover 80 million private-sector workers. Businesses that don’t comply can face fines of up to $14,000 per violation.

EEOC Launches Novel COVID-Related Disability Bias Suit

The EEOC brought its first-ever suit claiming an employer violated disability bias law by failing to provide workplace accommodations relating to COVID-19, accusing a Denmark-based facilities company of refusing to let an employee with a lung disease telework and then firing her. 

NC Wage Law Updated

The North Carolina Wage and Hour Act (NCWHA) was amended on July 8, 2021

Prior to these amendments, employers were required to pay terminated employees all wages due by the next regular payday after the separation, either “through the regular pay channels or by mail if requested by the employee.” The law now requires that employers issue final paychecks to separated employees using the regular payroll method used by the employer and may alternatively mail a separated employee’s final paycheck only if (1) the employee makes a written request for payment by mail and (2) the employer uses trackable mail to send the final paycheck, which likely requires delivery via certified mail or United States Postal Service Priority Mail. It is recommended that the employer maintain a record of the employee’s written request for payment of their final paycheck by mail and confirmation of delivery of the final paycheck in the separated employee’s personnel records.

And, there are new notice requirements:

  1. The NCWHA requires that employers provide notice to newly hired employees of their promised wages and the day and location for payment of such wages if paychecks will be delivered in person or the method of payment if the employer is utilizing direct deposit or mail for delivery of paychecks. While such notice in the past was sufficient if provided verbally, the amended law now requires that such notice be provided to new employees in writing. Therefore, it is advisable that employers have such notifications signed by the new employee and that they maintain documentation of the written, signed wage notification in the new employee’s personnel records.
  2. If an employee’s wages are reduced, the law previously required that the employer provide 24 hours advance written notice that could be posted in a common area accessible to employees. The amended law now requires that such written notice must be provided at least one pay period in advance of the reduction in wages and must be delivered to the affected employees individually in addition to being posted.

SC Remote Worker Relief

South Carolina has extended temporary relief regarding nexus and income tax withholding requirements for remote workers. On Aug. 25, the South Carolina Department of Revenue issued SC Information Letter #21-22, extending this relief through Dec. 31. This relief will not apply to workers who transition from temporarily to permanently working remotely.

A South Carolina business’ withholding requirements will not change because its employees are working outside of the state, so long as the remote work is a result of the pandemic and temporary in nature. Accordingly, the wages of nonresident employees temporarily working remotely in another state instead of their South Carolina business location are still subject to South Carolina withholding.

Generally, the wages of South Carolina residents who are working out of state are not subject to South Carolina withholding. If those South Carolina residents shift to teleworking from South Carolina due to the pandemic, the out-of-state business will not be subject to South Carolina’s withholding requirement. Accordingly, the employees’ wages will not be subject to South Carolina withholding if the employer is withholding income taxes on behalf of the other state.

TX Clarifies Denial of Unemployment for Misconduct

The Texas Unemployment Compensation Act limits the type of conduct that may disqualify a claimant from receiving benefits, but it does provide for disqualification “if the individual was discharged for misconduct connected with the individual’s last work.” Employers’ notions of “misconduct” do not necessarily match the act’s definition of “misconduct.” A recent Texas appellate court decision, Texas Workforce Commission v. Dental Health for Arlington, Inc., provides guidance for employers regarding the factors required to establish misconduct that would disqualify a former employee from receiving unemployment benefits.

The employer, Dental Health for Arlington, Inc. (DHA), had a rule requiring employees to arrive at work by 8:00 a.m., with a 15-minute grace period. On the occasion in question, it was reported to DHA that the claimant, Alma Castillo, had arrived at work after 8:15 a.m. However, the time clock reflected that she had arrived at 8:13 a.m. When management presented a warning notice to Castillo for being late, she refused to sign it, but she did mark that she disagreed and that she had clocked in at 8:13 a.m. Because she refused to sign the notice, DHA sent her home. When Castillo arrived at work the next day, DHA management told her that she could sign a notice acknowledging the policy violation or refuse to sign and receive a warning notice for insubordination. DHA discharged Castillo for insubordination after she refused to sign either of the notices.

After the termination of her employment, Castillo filed for unemployment benefits with the Texas Workforce Commission (TWC). The TWC awarded her benefits. The administrative appeal tribunal and the commission upheld the benefit award. DHA appealed the award to state district court. The district court granted summary judgment in favor of DHA and overturned the benefit award. The TWC appealed that decision.

The court of appeals observed that the TWC’s administrative decision is “presumed to be valid” and cannot be overturned if there is some evidence to support the decision. The appellate court observed that the definition of “misconduct” under the Texas Unemployment Compensation Act includes the “mismanagement of a position of employment by action or inaction … or violation of a policy or rule adopted to ensure the orderly work and the safety of employees.” In this matter, the court determined that DHA lacked “a ‘clearly establish[ed]’ policy” that the refusal to sign a warning notice could result in discharge. As a result, the court of appeals upheld the TWC’s award because “misconduct” had not occurred since there had not been a violation of a policy authorizing discharge for failure to sign an employee warning notice. DHA has petitioned the Supreme Court of Texas for a review of the decision.

This decision provides insight for employers regarding the types of policies and evidence that the TWC (and other state unemployment agencies) may review in order to evaluate whether an employer has discharged an employee for “misconduct.” The TWC prefers to see documented evidence that a policy exists, that the discharged employee was aware of that policy, that the discharged employee was aware that a violation of the policy could lead to termination of employment, and that the employer in fact discharged the employee for violating that policy. In deciding to challenge an employee’s application for benefits, employers may want to ensure that they have this type of evidence ready to be presented to the TWC if they want to successfully establish disqualifying “misconduct.”

Trend or Outlier?

On September 16, 2021, Florida will begin issuing $5,000 fines to any business entity, governmental entity, or educational institution that requires proof of COVID-19 vaccination. Governor Ron DeSantis signed an executive order in April, and then a bill (SB 2006) in May that banned vaccine passports. Now, the state’s Department of Health has established, in a rule, how it will be enforced. Now that this rule may run afoul of the upcoming OSHA rule mandating employers with 100+ employees be vaccinated or tested weekly, we may see litigation to reconcile.

MO Domestic Violence Leave

Missouri employers with 20+ employees must provide leave to victims of domestic or sexual violence under the Victims Economic Safety and Security Act (VESSA), no later than October 27, 2021.

Domestic violence is defined as “abuse or stalking committed by a family or household member.” Sexual violence is defined as a “sexual assault” or “trafficking for the purposes of sexual exploitation.”

A family or household member is defined as a “spouse, parent, son, daughter, other person related by blood or by present or prior marriage, other person who shares a relationship through a son or daughter, and persons jointly residing in the same household.”

Written by: Gordon M. Berger, Partner 

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